SIGNIFICANT CASE SUMMARY
New York Significant Case Summary
Rosario v. Wyckoff Supermarket Assoc.
Supreme Court of New York, Appellate Division, Second Department
255 N.Y.S.3d 714
Decided: May 6, 2026
Although defendants may not be held liable for trivial defects, photographs may not always be sufficient to prove insignificance.
Background
This matter arises out of a December 2018 slip and fall incident in Brooklyn. Plaintiff became injured after tripping and falling on a public sidewalk abutting the Wyckoff Supermarket and other shops. Plaintiff argued that the defendant businesses were negligent in their maintenance of the sidewalks because of a “misleveled portion of the sidewalk.”
The defendants moved for summary judgment by arguing that the sidewalk’s condition was “trivial and not actionable.” In support of this argument, the defendants submitted photographs of the sidewalk and plaintiff’s deposition transcript for additional context. The trial court agreed the defect was trivial and granted the motion for summary judgment. Plaintiff appealed.
Holding
The Second Department Appellate Division reversed the trial court’s grant of summary judgment, finding that the defendants did not submit sufficient evidence of a trivial defect. Because a defendant must make a prima facie showing that the defect is somehow “physically insignificant” “and that the characteristics of the defect or the surrounding circumstances do not increase the risk it poses,” the court must examine all circumstances. This includes, “width, depth, elevation, irregularity and appearance of the defect along with the time, place and circumstances of the injury.” Since the defendants did not include objective measurements, dimensions, or other quantifiable evidence, the Second Department held that the defendants failed to meet the burden for summary judgment.
Questions about this case can be directed to Catherine Dirksen at (646) 825-3721 or cdirksen@tthlaw.com.
Rowland v. Brooklyn Hosp. Ctr.
Supreme Court of New York, Appellate Division, Second Department
255 N.Y.S.3d 705
Decided: May 6, 2026
Second Department declines to extend New York’s common-law “storm in progress” rule to tracked-in weather hazards.
Background
This matter arises out of a November 2018 slip and fall accident during the course of a rainstorm. While walking into her doctor’s appointment, plaintiff slipped and fell on water in the Brooklyn Hospital Center’s vestibule. Plaintiff argued that the hospital was negligent in maintaining the vestibule.
The hospital moved for summary judgment. It argued that New York’s common-law “storm in progress rule” precluded its liability. This rule states that a property owner cannot be held liable for hazards caused by storms while the storm is still ongoing. According to the hospital, because the storm was ongoing, it did not have actual or constructive notice of the wet floor, and that it took reasonable steps to address the “tracked-in rain,” it should not be found liable under the rule. The trial court disagreed with the hospital and denied the motion for summary judgment. The hospital appealed.
Holding
The Second Department Appellate Division agreed with the trial court and affirmed the denial of summary judgment. The Second Department Appellate Division explained that the storm in progress rule shields property owners from liability for outdoor accidents occurring due to snow and ice, until “an adequate period of time has passed” from the storm’s end. This recognizes the cumulative nature of a storm and the futility of efforts to mitigate hazards before the storm has ended. Tracked-in storm conditions are distinct from outdoor storm conditions because they are not a “fruitless endeavor” to remove. Therefore, tracked-in storm hazards are governed by general premises liability, and are not covered by the storm in progress rule.
Questions about this case can be directed to Catherine Dirksen at (646) 825-3721 or cdirksen@tthlaw.com.