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The New York Supreme Court Appellate Division, Second Department, has reinforced the strict evidentiary burden property owners must meet to secure summary judgment based on the "trivial defect" doctrine. The trivial-defect doctrine is a legal principle in premises liability law that protects property owners from lawsuits over minor, insignificant structural flaws. Under this doctrine, if a defect (such as a sidewalk crack or slight elevation change) is so minor that it does not pose a reasonable risk of injury, a court can dismiss the case before it ever goes to trial.

In New York, judges review the totality of the circumstances in determining if an alleged defect is trivial. There is no mathematical formula or strict measurement baseline. On May 6, the court in Rosario v. Wyckoff Supermarket Association clarified this framework and noted that photographs and depositions lacking objective dimensions of an alleged defect are insufficient to dismiss a trip-and-fall claim as a matter of law.

What the Second Department Ruled in Rosario

The plaintiff in this action alleged injuries after catching his foot and falling on an allegedly misleveled, irregular portion of a sidewalk outside a supermarket operated by the defendants. In 2024, the Supreme Court in Kings County, New York, initially granted summary judgment in favor of the defendants on the grounds that the sidewalk defect was “trivial” as a matter of law based on photographs of the scene and the fact that it was a clear, dry day with no visibility obstructions.

The Appellate Division, Second Department, reversed the lower court's decision, allowing the plaintiff’s personal injury claim to proceed. The appellate court based its reversal on the strict evidentiary standards required to establish a trivial defect under New York law and noted that property owners seeking dismissal in premises liability cases must prove a defect is “physically insignificant” and poses no increased risk based on all surrounding circumstances. The defendants failed to provide any objective measurements, such as the exact height differential of the misleveled sidewalk portion, to prove the defect was physically insignificant.

While both parties acknowledged the photographs accurately represented the scene, the court ruled that it was impossible to reasonably infer the exact depth or extent of the defect purely from visual images. Because the defendants could not mathematically quantify the defect, they did not meet their initial legal burden to dismiss the case. Thus, New York maintains no minimal-dimension test or per se height/depth rule for actionability. The initial burden rests entirely on the defendant to provide precise, quantified physical measurements. The plaintiff only needs to raise a triable issue of fact after the defendant makes the aforementioned prima facie showing. Courts must evaluate width, depth, elevation, irregularity, appearance, time, place, and lighting conditions.

What Rosario Means for Property Owners and Insurers

This decision directly impacts claim valuations, reserve management, and defense spend for commercial lines and general liability insurers in New York.

Escalating Defense Costs

Claims handlers can no longer rely on post-accident photos from insureds to position a case for summary judgment but should budget for forensic engineers to take calibrated measurements. Insurers will spend more on drafting motions that face a higher statistical probability of denial under the Second Department's strict standard.

Shifting Settlement Dynamics

If a claims file lacks objective structural measurements, the case will likely survive summary judgment. Cases will stay open longer and progress further into discovery. Claims managers must increase indemnity reserves to account for prolonged litigation and the higher risk of a jury trial.

Overhauled Claim Investigation Protocols

Third-party administrators and internal investigators should be dispatched immediately upon notice of a claim to capture 3D scans, laser measurements, and high-resolution depth scaling before the insured repairs the defect.

Underwriting and Risk Engineering Adjustments

Loss-control teams should conduct more rigorous physical inspections of commercial sidewalks, walkways and parking lots during the underwriting phase. Because there is no "safe" minimum-dimension test, underwriters should ensure insureds repair even minor elevation changes immediately.

Actionable Guidance for Property Owners and Insurers

To successfully leverage the trivial-defect defense under this strict standard found in Rosario, defendants and their counsel should look to their post-accident investigation protocols, discovery methods, and motion strategy.

Pre-Answer and Investigation Adjustments

Property managers should photograph defects next to physical measuring tools (e.g., rulers or callipers) immediately following an incident. Additionally, a forensic engineer or investigator should be retained early to document exact dimensions, elevation changes, and structural context before conditions change or any repairs occur.

Changes to Discovery Tactics

Deposition questioning should include specific, quantifiable estimations of the defect, including width, depth and height. Securing a plaintiff’s admission that a photograph "fairly and accurately" depicts the scene is no longer a silver bullet. Depositions must establish what measurable inferences can be drawn from photographs of the alleged defect to prevent plaintiffs from exploiting visual ambiguity later.

Summary Judgment Motion Strategy

Summary judgment motions on trivial-defect grounds may require expert affidavits containing structural data and dimensional scaling. Because the Second Department emphasized the holistic "time, place, and circumstance" test, trial courts will increasingly view triviality as a question of fact for a jury rather than a matter of law for a judge.

Looking Forward

Ultimately, Rosario serves as a stark reminder that New York courts will not bail out defendants who rely on visual ambiguity to dismiss premises liability claims based on defect arguments. To successfully navigate this stringent standard, property owners and insurers will have to abandon passive, post-accident reporting and adopt rigorous, data-driven investigative protocols immediately following an incident. When every claim file contains objective physical measurements and expert engineering data, companies are better positioned to preserve the trivial-defect defense, mitigate prolonged litigation costs, and obtain favorable resolutions earlier in the litigation process.