Firm Operations Continue Uninterrupted During the Coronavirus. Click for More Information ›
Gair, Gair, Conason, Rubinowitz, Bloom, Hershenhorn, Steigman & Mackauf is a New York Plaintiff's personal injury law firm specializing in automobile accidents, construction accidents, medical malpractice, products liability, police misconduct and all types of New York personal injury litigation.
Published on:

New York Personal Injury Law, Premises Liability-Trivial Defects

In Delaney v. Town Sports International, doing business as New York Sports Club, et al., 2d Department decided on October 4, 2011, the Court was with faced with the age old question of trivial or de minimis defects.

The plaintiff suffered injury as a result of falling over a moveable wooden platform which had been placed on the tile floor of a sauna located within the defendants’ premises. The platform was 1½ inches off the floor with a ½ inch lip or overhang, and was located approximately 9½ inches from the sauna entrance door. The defendants moved for summary judgment contending, among other things that any alleged defect was trivial in nature. In denying defendants’ motion for summary judgment The Court held;

“”Whether a dangerous or defective condition exists on the property of another so as to create liability depends on the circumstances of each case and is generally a question of fact for the jury” (Perez v 655 Montauk, LLC, 81 AD3d 619, 619; see Trincere v County of Suffolk, 90 NY2d 976, 977; Vani v County of Nassau, 77 AD3d 819). Although some defects are trivial and, therefore, not actionable as a matter of law (see Trincere v County of Suffolk, 90 NY2d at 977; Vani v County of Nassau, 77 AD3d at 819), “[i]n determining whether a defect is trivial as a matter of law, a court [*2]must examine all of the facts presented, including the width, depth, elevation, irregularity, and appearance of the defect, along with the time, place, and circumstances of the injury” (Perez v 655 Montauk, LLC, 81 AD3d at 619-620; see Trincere v County of Suffolk, 90 NY2d at 977-978; Sabino v 745 64th Realty Assoc., LLC, 77 AD3d 722).

The defendants failed to establish their prima facie entitlement to judgment as a matter of law on the basis that the wooden platform did not constitute a defective condition (see Mayo v Santis, 74 AD3d 470; Argenio v Metropolitan Transp. Auth., 277 AD2d 165; see also Mishaan v Tobias, 32 AD3d 1000) or that any defect was trivial in nature (see Trincere v County of Suffolk, 90 NY2d 976; DePascale v E & A Constr. Corp., 74 AD3d 1128, 1131; Richardson v JAL Diversified Mgt., 73 AD3d 1012; Hahn v Wilhelm, 54 AD3d 896).

Posted in:
Published on:
Updated:

Comments are closed.