On September 21, 2017 a Queens County Justice denied the motion of a cooperative apartment building to dismiss the claim of a trip and fall victim who fractured her wrist outside an apartment building in Richmond Hill. Due to overgrown or growing tree roots, adjacent sidewalk flags are lifted which causes a height differential between two flags. The plaintiff, who was disabled and walking with a cane, tripped over a vertical rise of a mere 1 3/8" inches and fell upon her outstretched hand fracturing her wrist. The defendant co-op board argued for pre-trial dismissal upon the ground that the height differential was only 1 3/8's of an inch and thus a trivial defect at best.

Case law is clear that under certain circumstances a property owner may not be held responsible for a trivial defect. However, in order to have the Court dismiss such a claim as a matter of law--even before a jury trial--the defendant must also prove that the defect did not constitute a trap or nuisance considering all of the circumstances at the time of the accident. There is "no minimal dimension test" said the Trial Court and the plaintiff is entitled to a jury trial to allow the jury to consider the "width, depth, elevation, irregularity, and appearance of the condition, along with the time, place, and circumstances of the injury." It is for a jury to also decide whether the defect was obvious or not and/or whether it presented a trap or snare.