First Department Affirms Dismissal in NY Sidewalk Slip-and-Fall: No Notice and De Minimis Defect Doomed Claim
NY Slip Op 2024, Supreme Court, Appellate Division, First Department, entered on or about October 10, 2024, which, inter alia, granted defendants’ motion to dismiss the complaint and denied plaintiff’s cross motion for summary judgment, unanimously affirmed, without costs.
Plaintiff commenced this action seeking damages for personal injuries allegedly sustained when she tripped and fell on an uneven sidewalk flag adjacent to defendants’ premises. Defendants moved for summary judgment dismissing the complaint, arguing that they had no prior written notice of the defect as required by Administrative Code of City of NY § 7-201 et seq., and that the defect was de minimis. Plaintiff cross-moved for summary judgment on liability.
Defendants established their prima facie entitlement to judgment as a matter of law by submitting evidence, including an expert engineer’s affidavit, demonstrating that they had no prior written notice of the alleged defect and that the height differential between the sidewalk flags was less than 1/2 inch and thus de minimis (see Rodriguez v City of NY, 137 AD3d 571 [1st Dept 2016]; Cruz v City of NY, 170 AD3d 559 [1st Dept 2019]).
In opposition, plaintiff failed to raise a triable issue of fact. Her expert’s affidavit, which was conclusory and lacked measurements or photographs, was insufficient to rebut defendants’ showing (see Melendez v 333 E. 91 LLC, 167 AD3d 521 [1st Dept 2019]). Accordingly, the motion court properly granted defendants’ motion for summary judgment dismissing the complaint and denied plaintiff’s cross motion.
THIS CONSTITUTES THE DECISION AND ORDER OF THE COURT.
