NO "TRIVIAL DEFECT" WHERE HEXAGONAL PAVING STONES COULD BE A "TRAP OR SNARE"; LANDLORD DENIED SUMMARY JUDGMENT

Court: Supreme Court, Appellate Division, First Department, New York

Case: Valentin v. Columbia University

Date: Nov. 10, 2011

From: New York attorney Gary E. Rosenberg (personal injury and accident attorney and lawyer; serving Brooklyn and Queens; Brooklyn accident attorney)

Comment: Accident occurred when she fell after catching her foot between eight-sided paving stones. Defense loses its motion for summary judgment because plaintiff had witnesses to state that the stones were loose and jiggled and were dangerous, giving the property owner "constructive notice" -- defendant knew or should have known -- that the pavers were dangerous. Defendant also tried to wriggle out of this case on a "trivial defect" claim, but the appeals court holds that the paving stones could be like a "trap or snare." This takes them out of the "trivial defect" realm.

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Order, Supreme Court, New York County (Jane S. Solomon, J.), entered August 20, 2010, which, in this action for personal injuries, granted defendant's motion for summary judgment dismissing the complaint and denied plaintiff's cross motion for partial summary judgment on the issue of liability, unanimously modified, on the law, defendant's motion denied, and otherwise affirmed, without costs.

Dismissal of the complaint was not warranted in this action where plaintiff alleges that she was injured when, while walking on defendant's property, she stepped on a loose hexagonal paver, causing her foot to get caught in the space between pavers and her to fall to the ground. The statement from plaintiff's witness that "for many years prior to the date of the accident ... the hexagon tiles in the specific area of [plaintiff's] fall were loose and uneven and presented a hazardous condition" created a triable issue of fact as to whether defendant had constructive notice of the loose condition of the subject paver (see Colbourn v. ISS Intl. Serv. Sys., 304 A.D.2d 369, 370 [2003]; compare Lance v. Den-Lyn Realty Corp., 84 AD3d 470 [2011]).

Contrary to defendant's contention, it failed to establish that the defect was trivial as a matter of law, since there is a lack of evidence demonstrating the size of the gap between the pavers (see Rivas v. Crotona Estates Hous. Dev. Fund Co., Inc., 74 AD3d 541 [2010]). Furthermore, because the loose condition of a paver is difficult to detect, such a condition, combined with a gap between pavers, creates a triable issue as to whether the condition of the walkway, regardless of any triviality, had the characteristics of a trap or snare (see Glickman v. City of New York, 297 A.D.2d 220 [2002]).

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