Summary
finding defendants were entitled to summary judgment where the defect was trivial, measuring approximately one-half-inch in width and height differential, and the plaintiff failed to show the defect posed a significant hazard despite being de minimis
Summary of this case from Mazzalupo v. Long Island R.R.Opinion
2011-12-13
Julia SCHWARTZ, Plaintiff–Respondent, v. BLEU EVOLUTION BAR & RESTAURANT CORP., etc., et al., Defendants–Appellants.
Lewis, Brisbois, Bisgaard & Smith LLP, New York (Nicholas P. Hurzeler of counsel), for appellants. Grover & Fensterstock, P.C., New York (Ernest T. Lawson of counsel), for respondent.
Lewis, Brisbois, Bisgaard & Smith LLP, New York (Nicholas P. Hurzeler of counsel), for appellants. Grover & Fensterstock, P.C., New York (Ernest T. Lawson of counsel), for respondent.
ANDRIAS, J.P., FRIEDMAN, DeGRASSE, FREEDMAN, MANZANET–DANIELS, JJ.
Order, Supreme Court, New York County (Saliann Scarpulla, J.), entered April 13, 2011, which denied defendants' motion for summary judgment dismissing the complaint, unanimously reversed, on the law, without costs, and the motion granted. The Clerk is directed to enter judgment dismissing the complaint.
Plaintiff tripped and fell when her foot got caught in a gap between two sidewalk flags. The gap was approximately one-half-inch-wide and the height differential between the flags was also approximately one-half-inch. Defendants are entitled to summary judgment based on plaintiff's theory of how the accident occurred. The gap between the flags and the height differential was trivial and plaintiff has not come forward with evidence to show that the defect presented a significant hazard despite being de minimis ( see Gaud v. Markham, 307 A.D.2d 845, 764 N.Y.S.2d 241 [2003] citing Trincere v. County of Suffolk, 90 N.Y.2d 976, 977–978, 665 N.Y.S.2d 615, 688 N.E.2d 489 [1997] ).