In Torres v. Nine-O-Seven Holding Corp., the court granted defendants’ motion for summary judgment on plaintiff’s sidewalk trip-and-fall case.
After examination of the photographs and the other evidence presented in the record, including plaintiff’s deposition testimony, and considering all the relevant factors, this Court finds that as a matter of law the alleged defect in the sidewalk, which plaintiff described as “uneven” did not have the characteristics of a trap or nuisance and was too trivial a defect to be actionable. …
In opposition, plaintiff fails to raise a triable issue of fact, notwithstanding the affidavit of Stanley Fein, P.E. (Fein), in which he opines that the elevation of the sidewalk was in excess of 5/8 inch across its surface. Specifically, the Court notes that Fein inspected the site on June 12, 2014, more than two years from the date of plaintiff’s accident and after the sidewalk flags had already been replaced, and his opinion regarding any height differential is nothing more than “unsupported and conclusory speculation, which is insufficient to defeat summary judgment”.