Trivial Defect Supports Dismissal (NY)

When a noticeable defect causes an injury, the trial court will often deny a motion for summary judgment leaving the issue of triviality of that defect to the jury.  However, the Second Department recently found a defect was too minor oo support a claim of negligence.  In Zelichenko v. 301 Oriental Blvd.,   the plaintiff claimed he was injured while descending stairs in an apartment building owned by defendant.  He claimed he fell on a 3 inch wide and ½ inch deep chip in the second to last step form the bottom.

Defendant moved for summary judgment arguing that the chip was a non-actionable trivial defect.  The trial court denied the motion finding an issue of fact as to whether the chip in the stairs was trivial.  The Second Department reversed holding that the alleged defect was trivial as it was only 3 inches wide, ½ inch deep and not on the walking surface of the stair.  The court held that there is no minimal dimension test or per se rule that defects must be a minimum height or depth to be actionable.  Here, the defect was not a trap or a nuisance and defendant met its burden establishing such through plaintiff’s deposition testimony, photographs and an expert affidavit.

The lower court took the cautious route, denying defendant’s motion for summary judgment.  But the Appellate Division reversed finding that the defect was trivial and not actionable.  Therefore, there were no issues of fact for a jury to decide and the court dismissed plaintiff’s complaint.

It is often difficult to obtain summary judgment on the basis that a defect is too trivial.  However, a well-supported motion with photographs and an expert affidavit can overcome the judicial reluctance to grant summary judgment in some cases.

Thanks to Anne Mulcahy for her contribution to this post. If you have any questions, please email Paul at .