Firm Obtains Favorable Dismissal of Action in Bronx County Based upon the Trivial Defect Defense
In an action involving a trip and fall on an alleged defect on the public sidewalk, summary judgment was favorably decided by Justice Howard H. Sherman on May 22, 2019. Defendant moved for summary judgment based upon our expert’s findings, arguing that the Plaintiff’s complaint must be dismissed since the alleged “mis-leveled” sidewalk flag upon which Plaintiff tripped was trivial in nature and not actionable at law. The maximum height differential measured less than 3/16” and the section identified by Plaintiff, at the point of loss, measured less than 5/32” to less than 6/32”.
Judge Sherman agreed with our position and stated in his Order and Decision dated May 22, 2019 that the Plaintiff’s counsel failed to rebut our expert’s findings. The Plaintiff’s testimony that the unleveled portion of the sidewalk was “about an inch” together with the accompanying photographs of the alleged defect, did not rebut the conclusions of our expert and was not probative since the plaintiff’s counsel never measured the alleged defect.
See Annette Jackson v. Amber Hall, L.P., et. al., Index No. 304945/2014, Supreme Court, Bronx County, May 22, 2019.