Schwartz v Bleu Evolution Bar & Rest. Corp.

Schwartz v Bleu Evolution Bar & Rest. Corp. 2011 NY Slip Op 08980 Decided on December 13, 2011 Appellate Division, First Department Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. This opinion is uncorrected and subject to revision before publication in the Official Reports.

Decided on December 13, 2011
Andrias, J.P., Friedman, DeGrasse, Freedman, Manzanet-Daniels, JJ.
6050 117377/06

[*1]Julia Schwartz, Plaintiff-Respondent,

v

Bleu Evolution Bar & Restaurant Corp., etc., et al., Defendants-Appellants.




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 [2003] citing Trincere v County of Suffolk, 90 NY2d 976, 977-978 [1997]).

THIS CONSTITUTES THE DECISION AND ORDER
OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.

ENTERED: DECEMBER 13, 2011

CLERK