This is an action for personal injuries allegedly sustained by plaintiff when she tripped and fell on the sidewalk outside of a restaurant operated by defendant at New York. The Defendant is the owner of the real property located at the accident site.
Based on records, the weather conditions on the date of plaintiff’s accident were cold, there was no precipitation, no ice, no snow on the ground, no rain, but the sky was grayish. The Plaintiff passed through the accident site walking to and from work, twice a day every day for three years prior to the date of her accident. She noticed the sidewalk differential at the site of her accident over the period of time she walked back and forth to work. Immediately to plaintiff’s right – 5 to 10 feet – there was not room to go around the accident site. There was nothing obstructing plaintiff from avoiding the accident site by going to her left. The sidewalk was not crowded. The ground was wet from hosing down the sidewalk but, according to plaintiff the ground was wet but it didn’t cause her to fall. The presence of the garbage receptacle funnels or pushes people into the center of the sidewalk and makes it necessary to walk in the middle of the sidewalk.
It is undisputed that the height differential between sidewalk flags at the spot that plaintiff identified as the incident location was approximately one half (½) inch. A one half inch height differential between sidewalk flags are significantly smaller than or equal to height differentials that have been deemed by the overwhelming consensus of reported First Department cases as insignificant. As such, the purported uneven condition that plaintiff alleges caused her to fall is trivial as a matter of law and is not sufficient to establish that the condition was either dangerous or defective.
At her deposition, plaintiff identified certain photographs of the condition upon which she tripped. These photographs show that the height differential between the subject sidewalk flags at the spot where plaintiff allegedly fell was approximately one half (½) inch. Plaintiff specifically testified that she recognized these photographs as fairly and accurately depicting the incident scene as of the date of her injury. In fact, one of the photographs that plaintiff identified depicts the incident location with a ruler next to it. The measurement on the ruler shows the height differential between the sidewalk flags to be approximately one-half (½) inch.
Plaintiff further testified in her deposition that the weather on the date of the accident was cloudy and cold with no precipitation; that there was nothing obstructing her from walking to her left to avoid the accident site; the sidewalk was not crowded; and plaintiff first noticed the unevenness of the sidewalk flags as early as 2000, and walked on this block twice a day for more than three years prior to her fall.
Further, the photographs of the condition that plaintiff identifies as having caused her fall do no show any irregularities regarding the width or depth of the condition and the plaintiff did not cite any other conditions, such as poor lighting, ice, wetness or something else that may have contributed to her fall. The Plaintiff’s only complaint is that the sidewalk flags differential was approximately one half (½) inch.
A trivial defect on a walkway, not constituting a trap or nuisance, as a consequence of which a pedestrian might merely stumble, stub toes, or trip on a raised projection, may not be actionable. There is also no evidence indicating that the slight height differential posed a significant hazard by reason of its location or adverse weather or lighting conditions.
Pursuant to a Lease co-defendant operates a restaurant at the subject premises, the lessee had a non-delegable duty to maintain and repair the sidewalk in front of the subject premises. Based on the photographs of the sidewalk identified by the plaintiff herself as the cause of the accident, the defendants join in the motion for summary judgment.
The Sidewalk Law recites in pertinent part that it shall be the duty of the owner of real property abutting any sidewalk to maintain such sidewalk in a reasonably safe condition. The owner of real property abutting any sidewalk shall be liable for any damage to property or personal injury proximately caused by the failure of such owner to maintain such sidewalk in a reasonably safe condition. New York Code imposes a duty upon the abutting property owner to repair, re-pave or reconstruct the sidewalk flags abutting the property where, inter alia, there exists a trip hazard, where the vertical grade differential between adjacent sidewalk flags is greater than or equal to one half inch. In the instant case, the movants argue that the differential is one half (½) inch.
The court ordered that the motion of defendant and the cross motion of defendant for an order granting summary judgment dismissing the complaint of plaintiffs are granted, and the complaint is dismissed.
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