New York City Administrative Code §7-210, also known as the “sidewalk law,” states that the owner of real property abutting a sidewalk has the duty to maintain the sidewalk in a reasonable safe condition and is liable for injuries arising from his or her failure to do so. However, where a defendant can show that an alleged defect is merely trivial, as opposed to a trap or a nuisance, that party could be entitled to summary judgment.

In Sharbat v. 106-24 Realty Corp., the plaintiff was seeking damages for personal injuries stemming from a trip and fall over a piece of metal protruding from a public sidewalk. At the close of discovery, the owner of the abutting property moved for summary judgment arguing that the piece of metal protruding from the sidewalk was a non-actionable, trivial defect.

The Court explained that when determining whether a defect is trivial as a matter of law, it must examine all facts presented, “including the width, depth, elevation, irregularity and appearance of the condition.” The Court further reasoned that “there is no minimal dimension test or per se rule that a defect be of a certain minimum height or depth in order to be actionable.” The Court explained that because the property owner failed to include any expert report which may have made reference to an inspection or measurements of the metal, it did not successfully establish that the alleged defect was trivial as a matter of law.

When making the argument that a defect is “trivial,” it is important that defendants substantiate their moving papers with clear evidence that shows why the alleged defect is not actionable. If it really is a trivial defect as opposed to a trap or nuisance, it may well be worth the cost of hiring an expert to validate that argument prior to moving for summary judgment.

Thanks to Jeremy Seeman for his contribution to this post.