In Madero v. Pizzagalli Construciton Co., a worker was injured when he fell over an alleged defect in concrete that apparently was recently poured. During depositions it was determined, and it was uncontested, that the alleged defect was “tiny.” One of the witnesses placed a business card over a nickel and folded the corners or the card down and stated that the bump created by the nickel accurately described the size of the “defect” that the worker claimed to have been injured by. While the trial court denied the general contractor’s motion for summary judgment, the Appellate Division reversed and found that a defect can be trivial as a matter of law and that the circumstances here warranted a finding, as a matter of law, that the defect was trivial and that the plaintiff therefore was not entitled to recovery. In determining that the defect was trivial the court took into consideration the fact that the “defect” alleged was a common condition in construction sites at that phase in construction.

Vincent T. Pallaci is a New York construction lawyer.  He can be reached at vtp@nyconstructionlaw.com