This page summarizes and comments on a published court decision. It is general information, not legal advice, and reading it does not create an attorney-client relationship. Every case depends on its own facts. Unless this page says otherwise, The Eskesen Law Firm did not represent any party in this case.
Bottom line
A property owner asking a court to dismiss a trip-and-fall claim before trial must first show that there was no dangerous condition, that the defect was trivial, or that the owner neither created it nor had notice of it. Here, the Second Department reinstated a man’s claim that he tripped on a loose brick paver on the sidewalk in front of the defendant’s property, in part because the owner’s engineer inspected the area more than three years after the accident, with no showing that it was unchanged.
The case
- Court
- Appellate Division, Second Department
- Decided
- October 28, 2026
- Case
- Velasquez v 88 Cypress, LLC
- Citation
- 2026 NY Slip Op 06346
- Official text
- Read the decision on the New York courts’ official reporter site
The facts
The plaintiff alleged that he tripped and fell on a sidewalk in front of premises owned by 88 Cypress, LLC. He testified at his deposition that he tripped over a loose brick paver, which lifted when he stepped on it. The owner moved for summary judgment dismissing the complaint, and the Supreme Court, Queens County, granted the motion. The plaintiff appealed.
The holding
The Second Department reversed and denied the motion. An owner seeking dismissal on the ground that a defect is trivial “must make a prima facie showing that the defect is, under the circumstances, physically insignificant and that the characteristics of the defect or the surrounding circumstances do not increase the risks it poses” (2026 NY Slip Op 06346, *1, quoting Bilancione v Garden Homes Mgmt. Corp.). The owner’s submissions, “including a transcript of the plaintiff’s deposition testimony, photographs, and an expert affidavit from a professional engineer,” did not show “that no defective condition existed or that the alleged condition was trivial and therefore nonactionable” (id.). The expert’s affidavit fell short, “as the expert’s opinions were based upon an inspection that occurred more than three years after the accident and there was no showing that the area measured and examined by the expert was in the same condition as it was on the date of the accident” (id.). The owner also did not show that it lacked constructive notice, or that the condition “was a latent defect that could not have been discovered upon a reasonable inspection” (id.). So the motion failed “regardless of the sufficiency of the plaintiff’s opposition papers” (id.).
What changed
Nothing new: this applies settled law, including the Court of Appeals’ decision on trivial defects in Hutchinson v Sheridan Hill House Corp. (26 NY3d 66).
What it means
- The owner asking to end the case before trial has the initial burden to show that it is entitled to dismissal. Because this owner did not, the motion failed no matter how strong or weak the injured man’s opposing papers were.
- Not every sidewalk defect leads to liability, and an owner has no duty to protect or warn against a defect that is truly trivial. But the owner has to prove that, and the surrounding circumstances count, not just the size.
- Proof of the condition at the time of the fall matters. An inspection years later shows how the sidewalk looks then, which may not be how it looked when someone fell.
Our view
Commentary by Frank N. Eskesen. This section is opinion.
An expert’s inspection is a snapshot of the day it was taken. Here, that day came more than three years after the fall, and nothing showed that the sidewalk looked the same. A loose paver is a good example of why that matters: it can be reset, replaced, or knocked further out of place long before anyone measures it. Two lessons. 1. If you trip on a sidewalk, and your medical condition allows, photograph the exact spot right away, close up and from a distance, with something in the picture that shows its size, and get legal advice promptly; a photograph from that day may be the best record of the condition when you fell. 2. For lawyers, when the defense relies on an expert’s measurements, check the date of the inspection and whether anything shows the condition was unchanged, and get your own inspection and photographs as early as you can.
Topics
Court: Second Department. Year: 2026. Result: reversed.
Reviewed by Frank N. Eskesen, admitted in New York since 2000. Decided October 28, 2026. Posted October 28, 2026.
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