34 RCNY 2-09 (f) - Example Cases
34 RCNY 2-09 (f)(4) (viii) states, "All flags containing substantial defects shall be fully replaced. Patching of individual flags is not permitted." 34 RCNY 2-09 (f)(5) (iv) states, in pertinent part:
"(5) Substantial defects. Any of the following conditions shall be considered a substantial defect.
(iv) A trip hazard where the vertical differential between adjacent flags is greater than or equal to 1/2in. or where a flag contains one or more surface defects of one inch or greater in all horizontal directions and is 1/2in. or more in depth."
In D'Amico v. Archdiocese of New York (95 AD3d 601, 944 N.Y.S.2d 106 [1st Dept 2012], certain defendants moved for summary judgment in their favor on the ground that the sidewalk defect was a trivial defect. In opposition, the plaintiff submitted the affidavit of an engineer who measured the sidewalk defect at 11/16 of an inch, and who opined that it constituted a "substantial defect" under 34 RCNY 2-09 (f) (5) (iv).
On appeal, the Appellate Division, First Department ruled that "we cannot find, as a matter of law, that the defect was trivial." (D'Amico, 95 AD3d at 601.)
In Gomez v. Congregation K'Hal Adath Jeshurun, Inc. (104 AD3d 456, 961 N.Y.S.2d 100 [1st Dept 2013]), the Appellate Division cited D'Amico with approval, when it unanimously affirmed denial of the defendant's motion for summary judgment on the ground of trivial defect.
The Appellate Division stated, "Plaintiffs papers in opposition, however, raised triable issues of fact as to whether the one-half-inch differential between two sidewalk flags was a 'substantial defect' under 34 RCNY 2-09 (f) (5) (iv). . . ." (Gomez, 104 AD3d at 456-457.)