In Munasca v Morrison Mgt. LLC, a trip-and-fall case, the Appellate Division, First Department reversed the trial court’s dismissal of plaintiff’s case on summary judgment.
Plaintiff was injured after tripping and falling on a sidewalk defect in front of defendants’ premises.
The court held that defendant failed to show, as a matter of law, that the defect was “trivial”:
The pictures submitted by defendants in support of their motion do not unequivocally demonstrate that the complained-of defect is trivial as a matter of law since its size is not discernable and the photos appear to show that the defect has an edge, which could constitute a tripping hazard. There is also no evidence showing the defect’s dimensions at the time of the accident.
In addition:
Defendants’ reliance on plaintiff’s testimony that the height difference between the sidewalk flags at the time of her accident was approximately one inch, is insufficient to satisfy their prima facie burden, since the testimony was at best an estimate of the actual size of the defect, and was not based on an actual measurement. Furthermore, plaintiff’s deposition testimony suggesting that, because “there were a lot of people at the bus stop” at the time of the accident, it was difficult to detect the defect, raises factual questions requiring a trial.
Finally, the court rejected defendants’ argument “that they were not responsible for the defect either because it was ‘patchwork’ around a lamp post, or because it was at a bus stop”, reasoning:
The photographs in the record do not appear to depict patchwork for which the City might be responsible (see Administrative Code of City of NY § 19-152[a]), and defendants submitted no evidence to establish that the area was a designated bus stop maintained by the City.