Yes Virginia, There is a Trivial Defect

By Marc H. Pillinger.

Despite what you might have heard, the defense of “trivial defect” is still alive and well, at least in the Second Judicial Department.

The Appellate Division, Second Department, in the case of Drew v. N&P USA Realty LLC (decided February 9, 2023), granted summary judgment to the property owners stating that property owners are not liable for defects that may cause someone to merely stumble, stub their toes, or “to merely trip.” The Court stated that to determine whether a defect is trivial, all of the facts presented should be examined, including the “width, depth, elevation, irregularity and appearance of the defect along with the time, place and circumstances of the injury.” The Court determined as a matter of law that the defect at issue was trivial because it was physically insignificant, did not increase the risks under the circumstance, and was not a trap or nuisance.

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Should you have any questions, please call our office at (914) 703-6300 or contact:

Marc H. Pillinger, Executive Partner

Jeffrey T. Miller, Executive Partner