Slip, Trip and Fall Case Where Plaintiff is Seeking Damages After Tripping on a Sidewalk*

This is a motion by the defendants for judgment dismissing the complaint and any cross-claims against it.

The plaintiff sustained injuries as the result of a slip, trip and fall incident on a raised portion of the public sidewalk adjacent to Coop's premises in Queens County on February 12, 2004.

Property owners in the City of New York are required to repair and maintain, at their own expense, the public sidewalks abutting their premises, pursuant to the Administrative Code of the City of New York.

Furthermore, the Code imposes liability upon property owners for any slip, trip and fall injuries resulting from their failure to maintain and repair the public sidewalks abutting or adjoining their properties, except owners of one to three-family homes that are either wholly or partially owner-occupied and used exclusively for residential purposes.

Coop moves for summary judgment on the grounds that the plaintiff has failed to prove that Coop had actual or constructive notice of the sidewalk defect and that the defect was trivial, thus not substantial enough to trigger liability.

In order to obtain summary judgment, the movant must make a prima facie showing that it is entitled to relief, by tendering sufficient proof to eliminate any material issues of fact. Coop failed to meet this burden.

Coop contends that it set forth evidence of lack of notice by way of the testimony of its vice president, who said no complaints about the sidewalk were received prior to the accident, that no citations were issued to Coop with respect to the sidewalk prior to the accident and that no repairs were conducted to the sidewalk from 1990 through 2004.

This slip, trip and fall evidence only addresses the issue of actual notice, not constructive notice. Proof of lack of actual notice alone is insufficient to establish Coop´s initial burden. It was also incumbent upon Coop to establish lack of constructive notice by showing that the sidewalk defect was not visible or apparent for a sufficient period of time to have reasonably allowed Coop, in the exercise of reasonable care, to remedy the defect.

Coop has failed to proffer any evidence that the defect either did not exist, was not visible or was not apparent for a reasonably long enough time to have permitted it to remedy the defect. Coop also fails to establish that the defect was unsubstantial, or trivial, as it contends.

An adjacent property owner is only required to repair substantial defects. A substantial defect includes a trip hazard, where the vertical grade differential between adjacent sidewalk flags is greater than or equal to one half inch or where a sidewalk flag contains one or more surface defects of one inch or greater in all horizontal directions and is one half inch or more in depth.

Coop offers no evidence that the raised portion of the sidewalk in question was less than one half inch in height. Indeed, Coop proffers no evidence at all regarding the severity of the defect in this slip, trip and fall case.

The Sidewalk Law does not impose absolute tort liability upon landowners for injuries sustained on an abutting sidewalk. In order to prove a breach of duty in most slip, trip and fall cases, the plaintiff must show that the defendant created the condition which caused the accident or that the defendant had actual or constructive notice of the condition.

Coop failed to meet its prima facie burden on this motion. The motion by Coop for judgment dismissing the complaint and any cross-claims against it is denied.