New York Office Utilizes Photograph Comparisons to Obtain Summary Judgment on “Trivial Defect” Defense Despite Absence of Measurements or Expert Affidavit

(May 2023) - In a sidewalk slip-and-fall case, Abreu v. Pursuit Realty Group (Supreme Court, Kings County, 512265/19), New York Partner Toni N. Guarino and Associate Dean Pillarella obtained summary judgment via the trivial-defect defense based solely upon the plaintiff’s photograph of the sidewalk and deposition testimony and despite the absence of any measurements or expert affidavit.

In this matter, the sidewalk in question had been replaced, and thus measurements could not be taken. However, the plaintiff disclosed a photograph of the sidewalk taken days after the accident. As such, Toni utilized the photograph at the plaintiff’s deposition to pinpoint the site of the alleged fall.

When filing their motion for summary judgment, Toni and Dean cited Hutchinson v. Sheridan Hill House Corp., 26 N.Y.3d 66, 79 (2015), in which the Court of Appeals clarified the two prongs a defendant must satisfy to obtain dismissal on the ground that a sidewalk defect is trivial as a matter of law. They argued that Hutchinson permitted the court to determine, from the marked photograph and testimony alone, that any defect was physically insignificant as a matter of law.

They also cited numerous post-Hutchinson Appellate Division precedents. Toni and Dean annexed the record photographs from these precedents to their supporting papers and asked the court to draw photograph comparisons. In reply and at oral argument, Dean similarly argued that the record photographs in these precedents depicted objectively worse sidewalk conditions than the sidewalk at issue, and still, the Appellate Division dismissed the plaintiffs’ actions. Thus, the precedents supported dismissal by photographic comparison.

The trial court agreed with this argument and dismissed the plaintiff’s action, determining that, even in the absence of measurements or any expert affidavit, the evidence alone demonstrated that any perceived defect was trivial as a matter of law.

Abreu demonstrates that hope is not lost if measurements cannot be obtained in a sidewalk trip-and-fall case. The defendant can still prevail if the court can determine from the photographs and deposition testimony that the alleged defect is trivial as a matter of law. A defendant seeking to employ this strategy can bolster its chances of success through meticulous research to obtain record photographs from appellate precedents in which the defendant prevailed and asking the court to draw comparisons.

The court’s decision and order can be found at index no. 512265/19, doc. no. 63.