Summary judgment granted to commercial retailer for trivial defect, May 5, 2011

The plaintiff in this premises liability action alleged that she suffered personal injuries as a result of a dangerous carpeting condition inside the entrance area of the defendant commercial retailer’s department store.  Specifically, the plaintiff alleged that a dangerous condition was presented by a height differential in the area where two rugs met just inside the entrance.  David Leach and Michael Rubin successfully argued in support of a motion for summary judgment on behalf of the defendant that the defect – which a professional engineer measured to be at most 3/8” – was trivial and non-actionable.  There was also no evidence of any prior accidents despite the fact that the alleged condition had been in existence for a number of years and had been traversed by literally thousands of shoppers and employees.  This decision is noteworthy in view of the well-established law in New York that whether a dangerous or defective condition exists in any premises liability action is generally a question of fact for the jury.  The decision was recently affirmed on appeal.