First published: Oct 2025
Was it a Trivial Sidewalk Defect?
TAKEAWAY Personal injury cases are a subspecialty of litigation, subject to various rules, doctrines, and standards. Here, the condominium endured discovery, a half dozen motions, and five years of litigation before its attorneys were able to file a motion for summary judgment and dismissal based on the “trivial defect doctrine.” While the motion did not succeed, the litigation path and timing is fairly typical of a personal injury case. Here’s the good news and the takeaway: if this condo had liability insurance, as seems likely, then the litigation costs and defense were not paid by the condo—they were paid by the insurance carrier. The value of having good insurance is not that the carrier will pay out to an injured party, though that is obviously important. The real, practical value is that the carrier has a duty to defend the condo against lawsuits like this; the carrier will select attorneys with suitable expertise from its own “panel” of law firms; and the law firm’s fees will be paid directly by the carrier. As such, a good board will make sure that its condo or co-op community has a solid liability policy issued by a reputable carrier. A really good board will also keep an eye on the sidewalks, because it is easier to fix a tripping hazard than to engage in litigation.
MILKOV V. 135 BAY 26TH STREET CONDO ASSOCIATES ET AL.
WHAT HAPPENED In February 2020, Ms. Milov was walking on the sidewalk next to the small, six unit condominium at 135 Bay 26th Street in Brooklyn. Around 7:20 a.m., she tripped and fell because one of the sidewalk slabs in front of the property was slightly raised. She claimed the elevation difference was enough to cause a dangerous condition and sued the condo, who in turn said that while the sidewalk flag was raised its defect was “trivial.” It submitted proof, in the form of three photographs with a tape measure, purporting to show that the defect in the sidewalk flag elevation ranged from 1.25 to 1.5 inches. The condo also argued that the uneven slab was plainly visible, there were no obstructions blocking Milov’s view, the accident happened in daylight, and no prior complaints or accidents had ever been reported. Milov replied that New York does not have any “minimal dimension test” or per se rule that a defect must meet a certain height or depth and that the three photographs showed the elevation defect could have been 1.18 inches, 1.25 inches or 1.5 inches. Even though there was an issue of fact over the true elevation of the defect, the condo moved to have the case dismissed.
IN COURT The judge refused the condo’s motion. The court explained that there isn’t a set minimum size for how wide, deep, or uneven a sidewalk has to be before it’s considered dangerous. However, New York City’s Administrative Code says that if a sidewalk slab is raised by half an inch or more, it is deemed a “substantial defect.”. Because the evidence showed different measurements of how uneven the slab was, the court couldn’t say for sure that the problem was too minor to matter. Instead, the court said the question of whether the sidewalk was defective or not had to be resolved by a jury.
COUNSEL for the condominium HENRY CERNITZ Jacobson & Schwartz KEITH MCHUGH Devitt Spellman Barrett; 5 individual board members had representation from different firms; for Stella Milov YURITY PRAKHIN; Jury Coordinating Part 1
