Schwartz v Bleu Evolution Bar & Rest. Corp., 2011 NY Slip Op 08980 [90 AD3d 488]

Dcmbr 13, 2011

Appellate Division, First Department

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Lewis, Brisbois, Bisgaard & Smith LLP, New York (Nicholas P. Hurzeler of counsel), for appellants.

Grover & Fensterstock, P.C., New York (Ernest T. Lawson of counsel), for respondent.

Order, Supreme Court, New York County (Saliann Scarpulla, J.), entered April 13, 2011, which denied defendants’ motion for summary judgment dismissing the complaint, unanimously reversed, on the law, without costs, and the motion granted. The Clerk is directed to enter judgment dismissing the complaint.

Plaintiff tripped and fell when her foot got caught in a gap between two sidewalk flags. The gap was approximately one-half-inch wide and the height differential between the flags was also approximately one-half inch. Defendants are entitled to summary judgment based on plaintiff’s theory of how the accident occurred. The gap between the flags and the height differential was trivial and plaintiff has not come forward with evidence to show that the defect presented a significant hazard despite being de minimis ( see Gaud v Markham , 307 AD2d 845, 846 [2003], citing Trincere v County of Suffolk , 90 NY2d 976, 977-978 [1997]). Concur—Andrias, J.P., Friedman, DeGrasse, Freedman and Manzanet-Daniels, JJ.

[Prior Case History: 2011 NY Slip Op 30938(U).].