Watt

UNITED STATES DISTRICT COURT 2/4/2 026

EASTERN DISTRICT OF NEW YORK

U.S. DISTRICT COURT

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EASTERN DISTRICT OF NEW YORK

LAURIE KONECKY WATT,

LONG ISLAND OFFICE

Plaintiff, OPINION

AND ORDER

22-cv-07671 (JMW)

-against-

AVALONBAY COMMUNITIES, INC.,

Defendant.

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A P P E A R A N C E S:

Mitchell J. Baker

Baker, Leshko, Saline & Blosser, LLP

One North Lexington Avenue, 15th Fl.

White Plains, NY 10601

Attorneys for Plaintiff

Abed Z. Bhuyan

Wade Clark Mulcahy LLP

180 Maiden Lane, Suite 901

New York, NY 10038

Attorney for Defendant

WICKS, Magistrate Judge:

This case presents the question of whether the “trivial defect” doctrine under New York

law forecloses a negligence claim based upon a trip and fall from a speed hump. Plaintiff Laurie

Konecky Watt (“Plaintiff” or “Ms. Watt”) commenced this action against Defendant AvalonBay

Communities, Inc. (“Defendant” or “AvalonBay”) for negligence and negligence per se

stemming from a trip and fall that occurred at Defendant’s property located in Melville, New

York, where she resided. (See generally, ECF No. 1.) Plaintiff alleges that due to the absence of a

pedestrian sidewalk, she was caused to walk on the roadway to access her unit, which Defendant

failed to maintain in good repair and in a reasonably safe condition leading to her shoe becoming

caught on a crack contained at the base of a “speed hump”. (/d.) While majority of the motion

papers state that the defect was a “speed hump”, some portions discuss a “speed bump” instead.

However, in Plaintiff’s deposition, Plaintiff clarifies “[iJt's really not a speed bump. It's a speed

hump.” (See ECF No. 34-5 at 114. The Complaint, on the other hand, alleges the defect to be a

“speed bump”. There are differences between the two, but the goal of both is to ensure safety

and slow down vehicles.! Discovery is complete and now before the Court is Defendant’s

' The differences between speed bumps and humps are best summarized as the below.

Speed bumps are raised pavement structures that are typically 3 to 4 inches high and 12 to

20 feet long. They are designed to force drivers to slow down to 5-10 miles per hour. Speed

bumps are usually used in areas with low traffic volume, such as parking lots, residential

streets, and private roads. They are often placed near pedestrian crossings, school zones,

or other areas where there is a high risk of accidents involving pedestrians.

Speed humps are similar to speed bumps, but they are longer and more gradual. They are

typically 3 to 4 inches high, but they can be up to 14 feet long. Unlike speed bumps, which

are usually placed in a row, speed humps are usually placed several hundred feet apart.

This makes them more suitable for use on roads with higher traffic volumes, such as

residential streets and collector roads.

Speed Bumps vs Speed Humps, ROADSKY GRP. (Mar. 24, 2023), https://roadskysafety.com/speed-bumps-

vs-speed-humps; see also Daniel Wright, Speed Bumps Vs. Speed Humps: Difference And Uses, PROLINE

PLM (Mar. 6, 2023), https://prolineplm.com/speed-bumps-vs-speed-humps-difference-and-uses/

(illustrating the differences in a chart, attached below). As such, it appears the proper phrase here is a

“speed bump” not “hump”.

Id.

Motion for Summary Judgment on the Complaint (ECF No. 34), Plaintiff’s opposition papers

(ECF Nos. 35-37), and Defendant’s reply (ECF No. 39). Oral argument on the motion was held

on January 28, 2026. (See Electronic Order dated 1/28/2026.) For the reasons that follow,

Defendant’s Motion for Summary Judgment (ECF No. 34) is GRANTED.

FACTUAL BACKGROUND

The following facts are taken from the parties’ Local Rule 56.1(a) Statements and are

uncontested unless otherwise noted.2

On May 15, 2022, at 3:00 p.m. Plaintiff tripped over a speed hump on a private roadway

within her community outside her residence at 620 Court North Drive, Melville, New York.

(ECF No. 34-17 at ¶ 1.) This occurred as Plaintiff was walking from a nearby parking lot in the

community. (ECF No. 34-3 at ¶ 9.) During oral argument, Defendant clarified that the speed

hump is located on a street in the private residence community. It is uncontroverted that at that

time, it was daylight, the weather was “beautiful”, and no obstructions were present. (ECF No.

34-17 at ¶ 2.) Plaintiff takes issue with this statement to the extent that nothing obscured her

2 The facts set forth above are taken from the parties’ respective Rule 56.1 Statements and corresponding

responses. See ECF Nos. 34-17 (AvalonBay’s 56.1 statement) and 36 (Plaintiff’s response). Unless

otherwise noted, a standalone citation to a party’s Rule 56.1 statement means that the Court has deemed

the underlying factual allegation undisputed. Any citation to a Rule 56.1 statement incorporates by

reference the documents cited in it. Where relevant, however, the Court may also cite directly to an

underlying document. The Court has deemed true undisputed facts averred in a party’s Rule 56.1

statement to which the opposing party cites no admissible evidence in rebuttal. See Stewart v. Fashion

Inst. of Tech., No. 18-CV-12297 (LJL), 2020 WL 6712267, at *8 (S.D.N.Y. Nov. 16, 2020) (“‘[P]ursuant

to Local Civil Rule 56.1 [the movant’s] statements are deemed to be admitted where [the non-moving

party] has failed to specifically controvert them with citations to the record.’”) (quoting Knight v. N.Y.C.

Hous. Auth., No. 03-CV-2746 (DAB), 2007 WL 313435, at *1 (S.D.N.Y. Feb. 2, 2007)); Lumbermens

Mut. Cas. Co. v. Dinow, No. 06-CV-3881 (TCP), 2012 WL 4498827, at *2 n.2 (E.D.N.Y. Sept. 28, 2012)

(“Local Rule 56.1 requires . . . that disputed facts be specifically controverted by admissible evidence.

Mere denial of an opposing party’s statement or denial by general reference to an exhibit or affidavit does

not specifically controvert anything.”). “Additionally, to the extent [a party’s] 56.1 statement ‘improperly

interjects arguments and/or immaterial facts in response to facts asserted by [the opposing party] without

specifically controverting those facts,’ the Court has disregarded [such] statement[s.]” McFarlane v.

Harry’s Nurses Registry, No. 17-CV-06350 (PKC) (PK), 2020 WL 1643781, at *1 n.1 (E.D.N.Y. Apr. 2,

2020).

view. (ECF No. 36 at ¶ 2.) Plaintiff claims her toe got caught in a crack within the speed hump.

(ECF No. 34-17 at ¶ 3.) Plaintiff clarifies that her shoe is what got caught in the crack. (ECF No.

36 at ¶ 3.)

Plaintiff’s open-toed right shoe contained a dark mark where she claims her shoe made

contact with the speed hump. (ECF No. 34-17 at ¶ 4.) Plaintiff was unable to represent whether

the mark occurred after the fall or was the point of contact of her shoe with the crack. According

to Plaintiff, the crack of the speed hump – the defect at issue – was ½ inch in vertical dimension.

(Id. at ¶ 5.) Plaintiff’s husband, Mitchell Watt, lived at this residence and was present when the

incident occurred. (Id. at ¶ 6.) Mr. Watt walked over this same speed hump at issue immediately

prior to Plaintiff. (Id.) Mr. Watt did observe that the speed hump was not in great condition and

was aware prior to May 15, 2022, that there were visible cracks. (Id.) Plaintiff admits the

foregoing while stating that there is no indication that Mr. Watt walked over the defect. (ECF No.

36 at ¶ 6.)

At the time of the incident, Deosaran Ramkissoon (“Mr. Ramkissoon”) was Defendant’s

maintenance manager. (Id. at ¶ 7.) Mr. Ramkissoon’s staff conducts monthly general inspections

and there is an unwritten “if you see something, say something” daily policy. (Id.) Mr.

Ramkissoon described the condition of the speed hump as normal, a bit faded, and a wear and

tear as time goes by. (Id.) Plaintiff adds to the above by stating that Defendant did not inspect the

full grounds of the Melville location and did not specifically inspect the roadway or speed hump

except by a vehicle drive through. (ECF No. 36 at ¶ 7.) Plaintiff does not allege actual notice of

the subject defect. (ECF No. 34-17 at ¶ 8.)

THE LEGAL FRAMEWORK

On a summary judgment motion, the movant must demonstrate there is “no genuine

dispute as to any material fact and the movant is entitled to judgment as a matter of law.” Fed.

R. Civ. P. 56(a); see also Radwan v. Manuel, 55 F.4th 101, 113 (2d Cir. 2022). A genuine dispute

of material fact exists “if the evidence is such that a reasonable jury could return a verdict for the

nonmoving party.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). The initial burden

is on the movant to demonstrate the absence of a genuine issue of material fact, which can be

met by pointing to a lack of evidence supporting the nonmovant’s claim. Celotex Corp. v.

Catrett¸ 477 U.S. 317, 323, 325 (1986); Feingold v. New York, 366 F.3d 138, 148 (2d Cir. 2004).

Once the movant meets its initial burden, the burden shifts and the nonmovant may defeat the

motion only by adducing evidence of specific facts that raise a genuine issue for trial. Fed. R.

Civ. P. 56(e); Anderson, 477 U.S. at 250; Davis v. New York¸ 316 F.3d 93, 100 (2d Cir. 2002).

“The Court is to believe the evidence of the non-movant and draw all justifiable

inferences in her favor, but the non-movant must still do more than merely assert conclusions

that are unsupported by arguments or facts.” Sosa v. New York City Dep't of Educ., 406 F. Supp.

3d 266, 268 (E.D.N.Y. 2019) (internal citations omitted). The role of the court at the summary

judgment phase is not to resolve disputed issues of fact but only undertake an analysis to identify

whether triable issues of fact exist. See Kee v. City of New York, 12 F.4th 150, 167 (2d Cir. 2021).

That is, the court’s function is “issue-finding,” not “issue-resolution.” Carolina Cas. Ins. Co. v.

Cap. Trucking Inc., 523 F. Supp.3d 661, 668 (S.D.N.Y. 2021) (citing Gallo v. Prudential

Residential Servs., Ltd. P’ship 22 F.3d 1219, 1224 (2d. Cir. 1994)). Au fond, the court’s role is to

decide whether, “after resolving all ambiguities and drawing all inferences in favor of the

nonmovant, a reasonable jury could return a verdict for the nonmovant.” Miller v. N.Y. State

Police, No. 20-3976, 2022 WL 1133010, at *1 (2d Cir. Apr. 18, 2022) (citing Anderson, 477 U.S.

at 248 and Garcia v. Hartford Police Dep’t, 706 F.3d 120, 127, 129 (2d Cir. 2013)).

It is within this framework that the motion for summary judgment is considered.

DISCUSSION

Defendant seeks summary judgment on all claims in the Complaint under Fed. R. Civ. P.

56. Even viewed in the light most favorable to Plaintiff, Defendant alleges that the claims fail as

the evidence proffered by Plaintiff confirms that the alleged defect falls squarely within the so-

called trivial defect doctrine under New York law and are therefore not actionable. (ECF Nos.

34-1 at 1-2; 39 at 1.) The threshold issue is whether this is a trivial defect which if so, is not

actionable. If not, then the Court must address the issue of constructive notice.

As an initial matter, the burden on summary judgment is considered a procedural issue

and therefore the Federal Rules apply. “The federal burden of proof on a motion for summary

judgment differs from the corresponding standard under New York law in a slip-and-fall action.”

Sampson v. Sarah Lawrence Coll., No. 18-CV-7518 (JCM), 2021 WL 3855862, at *5 (S.D.N.Y.

Aug. 26, 2021) (collecting cases). Here the movant “need not make any affirmative prima facie

showing on [a] motion for summary judgment, and may discharge its burden of proof merely ‘by

pointing to an absence of evidence to support an essential element of [Plaintiff's] claim.’” Id.

(quoting Vasquez v. United States, No. 14-CV-1510 (DF), 2016 WL 315879, at *5 (S.D.N.Y. Jan.

15, 2016)) (emphasis in original); see also e.g., Moy v. Target Corp., 629 F. Supp. 3d 205, 209–

10 n.5 (S.D.N.Y. 2022) (internal citations omitted) (“The distinction between the federal and

more ‘plaintiff-friendly’ state standard is significant in cases where the plaintiff relies on ‘a slim

set of baseline facts.’ In such cases, a defendant in federal court can meet its burden by showing

the absence of evidence supporting the plaintiff's case, whereas a defendant in state court must

show affirmative evidence ….”); Castellanos v. Target Dep't Stores, Inc., No. 12-CV-2775

(GWG), 2013 WL 4017166, at *7 (S.D.N.Y. Aug. 7, 2013) (same). So, the “procedural ‘burden-

shifting standard’ does not apply in federal diversity cases.” Moy, 629 F. Supp. 3d at 209–10 n.6

(S.D.N.Y. 2022) (internal citations omitted); see also Strass v. Costco Wholesale Corp., No. 14-

CV-06924 (PKC)(VMS), 2016 WL 3448578, at *6 (E.D.N.Y. June 17, 2016) (“Plaintiffs, and not

Defendant, bear the burden of putting forth sufficient evidence to establish a triable issue of fact

….”) The substantive law of negligence in New York applies.

Under New York law, a prima facie case of negligence requires a plaintiff to show: “(1) a

duty owed by the defendant to the plaintiff, (2) a breach thereof, and (3) injury resulting

therefrom.” Solomon v. City of New York, 489 N.E.2d 1294 (N.Y. 1985); see also Tzul v. United

States, No. 12-CV-804 (NGG)(JMA), 2014 WL 4773972, at *3 (E.D.N.Y. Aug. 14, 2014), report

and recommendation adopted, No. 12-CV-804 (NGG)(JMA), 2014 WL 4773974 (E.D.N.Y. Sept.

24, 2014) (citing Solomon, 489 N.E.2d 1294) (same). Specifically, in a trip and fall case like this,

plaintiff must establish that (i) a hazardous or dangerous condition existed, and (ii) that the

defendant either created the condition or had actual or constructive knowledge of it and failed to

correct it within a reasonable time after acquiring such knowledge. See Edwards v. Terryville

Meat Co., 577 N.Y.S.2d 477, 478 (N.Y. App. Div. 2d Dep’t 1991); see also Valente v. United

States, No. 17-CV-3853 (JMA)(JMW), 2023 WL 1838012, at *10 (E.D.N.Y. Feb. 8, 2023),

report and recommendation adopted, No. 17-CV-03853 (JMA)(JMW), 2023 WL 2522815

(E.D.N.Y. Mar. 15, 2023) (quoting Leonardi v. United States, No. 11-CV-4827 (LDW) (GRB),

2013 WL 5295714, at *2 (E.D.N.Y. Sept. 18, 2013) (same).

Defendant alleges the defect, if any, is trivial and thus not actionable and the Court need

not look further. (ECF No. 34-1 at 4-6.) Plaintiff on the other hand argues first, that triviality should

be left to the jury, thereby warranting denial of summary judgment and second, where negligence

per se is alleged, the triviality defense must be determined by the jury. (ECF No. 35 at 7, 11-12.)

While New York usually leaves questions of negligence like this one to factfinders,

see Hutchinson v. Sheridan Hill House Corp., 26 N.Y.3d 66, 77, 19 N.Y.S.3d 802,

41 N.E.3d 766 (2015), it maintains an exception in slip-and-fall cases for what it

calls the “trivial defect doctrine.” Id. at 77, 19 N.Y.S.3d 802, 41 N.E.3d 766. That

doctrine has long recognized “that a defendant ‘may not be cast in damages for

negligent maintenance by reason of trivial defects on a walkway ... as a

consequence of which a pedestrian might merely stumble, stub his toes, or trip over

a raised projection.’” Id. at 78, 19 N.Y.S.3d 802, 41 N.E.3d 766 (quoting Guerrieri

v. Summa, 193 A.D.2d 647, 598 N.Y.S.2d 4, 5 (2d Dep't 1993)).

Coyle v. United States, 954 F.3d 146, 149 (2d Cir. 2020) (affirming summary judgment on a

finding that the alleged dangerous condition was a trivial defect and failed as a matter of law);

see also Bursztein v. Best Buy Stores, L.P., No. 20-CV-76 (AT), 2021 WL 3371036, at *2

(S.D.N.Y. Aug. 3, 2021) (quoting Guerrieri, 598 N.Y.S.2d at 5) (“New York law maintains an

exception in slip-and-fall cases for ‘trivial defect[s].’ … A property owner may not be held liable

for ‘trivial defects on a walkway ... as a consequence of which a pedestrian might merely

stumble, stub his toes, or trip over a raised projection.’”)

“The trivial defect doctrine is grounded on a fundamental principle that spans all types of

liability: that if a defect is so slight that no careful or prudent [person] would reasonably

anticipate any danger from its existence, and yet an accident occurs that is traceable to the defect,

there is no liability.” Hutchinson v. Sheridan Hill House Corp., 41 N.E.3d 766, 775 (N.Y. 2015)

(internal citations and quotations omitted). This doctrine applies equally to private landlords and

municipalities. Id. (collecting cases). Simply put, a trivial defect insulates a defendant from

liability. As the Court of Appeals of New York stated,

[t]here is no rule that [tort] liability, in a case involving minor defects in the

pavement, turns upon whether the hole or depression, causing the pedestrian to fall,

is four inches, or any other number of inches, in depth.... The critical inquiry is

whether, after considering the time, place, and surrounding circumstances of

plaintiff's injury, along with the crack's height differential, a defective condition

can reasonably be said to exist.

Trincere v. Cnty. of Suffolk, 688 N.E.2d 489, 490 (N.Y. 1997) (internal quotations & citations

omitted) (emphasis added); see also Meggin Bednarczyk, Annette Cordasco, How Small is Too

Small: the Trivial Doctrine in New York Law, CITYLAND NEW YORK CITY LAND USE AND LEGAL

NEWS, (May 23, 2016), https://www.citylandnyc.org/small-small-trivial-doctrine-new-york-law/

(discussing the same).

Importantly, “[n]ot all defects are unreasonable and therefore actionable”; “[s]ome

defects are trivial as a matter of law.” Estrella-Jones v. United States, No. 13-CV-5454 (CBA)

(LB), 2016 WL 7243540, at *3 (E.D.N.Y. Dec. 14, 2016), aff'd, 706 F. App'x 28 (2d Cir. 2017),

as amended (Dec. 21, 2017) (citing Natijehbashem v. United States, 828 F. Supp. 2d 499, 507

(E.D.N.Y. 2011) (collecting cases) (discussing that generally defects under an inch are trivial)).

This principle is properly considered at the summary judgment stage. See e.g., Velez v.

Inst. of Design & Const., Inc., 782 N.Y.S.2d 755, 755 (N.Y. App. Div. 2d Dep’t 2004) (affirming

summary judgment dismissing claims) (“based on the photographs depicting the area where the

plaintiff fell, as well as other evidence presented, the Supreme Court properly found that the

alleged defect which caused the plaintiff to trip and fall was trivial and not actionable as a matter

of law”); Balbo v. Greenfield's Mkt. of Bethpage, LLC, 190 N.Y.S.3d 146, 148 (N.Y. App. Div. 2d

Dep't 2023) (granting summary judgment where considering all the circumstances including that

plaintiff visited the location many times, there was good weather, and the photos submitted

showed “ that the alleged defect was trivial”); Clarke v. 90 S. Park Owners, Inc., 213 N.Y.S.3d

159, 161 (N.Y. App. Div. 2d Dep’t 2024) (affirming summary judgment) (“The plaintiff testified

at her deposition that she had walked on that sidewalk many times in the past, she had never

tripped or fallen on the sidewalk before, she did not notice the elevation in the sidewalk, nothing

obstructed her view of the sidewalk, and the lighting conditions allowed her to see the sidewalk

without any difficulty”); Campbell-Ramdin v. Town of Hempstead, 212 N.Y.S.3d 187, 188 (N.Y.

App. Div. 2d Dep’t 2024) (affirming summary judgment) (“the alleged defect in the sidewalk

was physically insignificant, that the accident occurred on a sunny day, and that there was

nothing obstructing the plaintiff's view or path at the time of the accident ... the alleged defect

was trivial [and] not actionable”).

The parties have stipulated to the admissibility of the following pictures that depict the

speed hump and Plaintiff’s shoe mark on the shoes worn by Plaintiff at the time of the incident.

(ECF No. 34-12.) Plaintiff provided the following photos.

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A portion of the speed hump located in the Avalon Meville location depicting the defect.

(ECF No. 34-10 (known as Exhibit H).)

10

Cee Uaioe □□□ an A ee

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A portion of the speed hump located in the Avalon Meville location depicting the defect. Plaintiff

at oral argument could not conclusively verify the person in this picture but assumed it was

someone assisting the expert.

(/d.)

11

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Additional pictures of the cracks and condition of the speed hump.

(Id.)

12

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A ruler pointing to the alleged crack in the speed hump that caused the injuries.

(/d.)

13

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A screenshot of a video taken by Defendant’s Expert measuring the size of the cracks through the

use of a profilometer.

(ECF No. 34-16 (known as Exhibit C of Defendant’s Expert’s Declaration).) °

3 A sua sponte review of the above pictures measuring the alleged crack illustrates that the defect is likely

less than half an inch. Indeed, the profilometer used shows that the measurement to be at the less than

half-inch mark. Notwithstanding, the Court will follow the parties’ agreed-upon measurement, which is

half an inch. Indeed, at oral argument Defendant admits that its expert found it to be less than half an inch

but for purposes of the instant motion, conceded to the half inch measurement.

14

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Pictures of Plaintiff’s shoe indicating scruff marks on her shoe following the incident.

(ECF No. 34-11 at 2-3 (known as Exhibit I).)4

Plaintiff argues that the defect was a “trap”, which renders a defendant liable who might

otherwise escape liability if the defect is trivial. (ECF No. 35 at 9-10.) See Estrella-Jones, 2016

WL 7243540, at *4—5 (collecting New York cases and finding no evidence “that the wom

pavement here was trap—or snare-like”’) (“[a] condition that is ordinarily apparent to a person

making reasonable use of his or her senses may be rendered a trap for the unwary where the

4 At oral argument, Plaintiff stated that the scuff is where plaintiff’s shoe met the defect or on some part of

the speed hump. There is no dispute as to the scuff on the shoe as stipulated. However, Plaintiff stated it

is uncertain where exactly the scuff spot was made but it was somewhere on the speed hump.

15

condition is obscured or the plaintiff is distracted.”) “Generally, a trap is an artificially created

inherently dangerous but deceptively innocent instrumentality or condition. Its distinguishing

characteristic, as compared to a mere defect in the premises, is that it is an inherently dangerous

instrumentality with a deceptive appearance of safety that is deliberately created or constructed.”

Id. (quoting 85 N.Y. Jur. 2d Premises Liability § 34; citing Mayer v. Temple Properties, 122

N.E.2d 909 (N.Y. 1954)); see also Farruggio v. Kraft Heinz Food Co., 747 F. Supp. 3d 420, 425

(N.D.N.Y. 2024) (quoting Smith v. Target Corp., No. 22-CV-00058 (AMN)(ML), 2023 WL

5959545, at *3 (N.D.N.Y. Sept. 13, 2023) (“[A]n ordinarily apparent condition ‘may be rendered

a trap for the unwary where the condition is obscured by crowds or the plaintiff's attention is

otherwise distracted.’”)).

Defendant’s expert, Angela Levitan, opined that whether the crack in the speed hump was

¼ of an inch or ½ of an inch, Plaintiff’s shoe would not have been caught in the crack, and it is

likely that Plaintiff simply lost her balance leading to the fall. (ECF No. 34-13 at ¶ 12.) In

contrast, Plaintiff’s expert James Pugh,5 concluded that the speed hump was “in a very poor state

of repair, with numerous fissures, cracks, and yellow paint in the process of wearing completely

off” and that this, coupled with the lack of a sidewalk, lead to the incident. (ECF No. 37 at 4.)

Nonetheless, the deposition transcript, expert reports, as well as the photographs illustrate that no

trap was present. See Dery v. K Mart Corp., 924 N.Y.S.2d 154, 156 (N.Y. App. Div. 2d Dep’t

2011) (finding that upon review of the photographs and other evidence of the alleged defect

being a chip in a curb, the action was trivial and was not a trap); Outlaw v. Citibank, N.A., 826

N.Y.S.2d 642, 644 (N.Y. App. Div. 2d Dep’t 2006) (“After examination of the photographs and

the other evidence in the record, we find that, as a matter of law, the alleged defect did not have

5 Plaintiff in her opposition states that Dr. Hutchinson was the expert. (ECF No. 35 at 10.) However, the

Court interprets that as an error.

the characteristics of a trap and was too trivial to be actionable.”) Plaintiff’s argument that the

area was an “optical trap” is contrary to her testimony. (ECF No. 35 at 10.) Plaintiff testified at

her deposition, that at the time of the incident, there was “pure daylight … it was not dark … it

was daylight”. (ECF No. 34-5 at 72.) Importantly, this location was where the Plaintiff had lived.

When asked at her deposition as to the timing, she first stated that she stayed there one night

before going to Florida, where she remained mostly (see id. at 18-21) but later testified that she

stayed at the Avalon apartment for consecutive nights and months (see id. at 24). Additionally,

Mr. Watt testified that he and Plaintiff lived at the Melville Avalon location for about two years.

(See ECF No. 34-7 at 12-15.) Yet, they travelled back and forth to Florida, which was their

primary residence. (Id.) With that, the location of the defect at issue was not unknown territory to

Plaintiff.

Courts across the country have – overwhelmingly – not found actionable defects in speed

humps or bumps. See e.g., Rivera v. City of New York, 870 N.Y.S.2d 241, 243 (N.Y. App. Div. 1st

Dep’t 2008) (“Defendant established its prima facie entitlement to summary judgment by

showing that the speed bump was plainly observable and did not pose any danger to someone

making reasonable use of his or her senses.”); Heflin v. Am. Home Wildwood Ests., L.P., 936 So.

2d 226, 231 (La. Ct. App. 2d Cir. 2006) (“The jurisprudence contains cases finding speed bumps

were not unreasonably dangerous. … speed bumps have social utility, even though they create a

hazard to inattentive pedestrians….”); Smith v. Westdale Asset Mgmt., Ltd., 353 So. 3d 108, 111

(Fla. Dist. Ct. App. 2022) (“Appellant thus knew that speed bumps proliferated at the complex,

including the specific set of speed bumps at the place where she tripped. …record does not

indicate that the speed bump was an inherently dangerous condition that would cause injury”);

Moncla v. Albertson's Inc., 670 So. 2d 316, 319 (La. Ct. App. 3d Cir. 1996) (finding speed bumps

did not create an unreasonable risk).

This case is akin to Bursztein, where the Court granted summary judgment to Defendant

due to triviality. 2021 WL 3371036, at *3. In Bursztein, the plaintiff fell “as a result of a raised

piece of metal at the top of an escalator” at a Best Buy location. Id. at *1. The Court was faced

with deciding whether a “defective metal blended into the surrounding floor.” Id. at *3. There,

the Court citing to the Second Circuit in Coyle, found that based on the photographs submitted,

the defect at issue did not blend into the floor. Id. Therefore, reviewing the stipulated to pictures

submitted by the parties (see ECF No. 34-12) and the uncontested fact that the alleged defect was

half an inch (see ECF No. 36 at ¶ 5), the inescapable conclusion is that the defect is trivial. See

Snyder v. AFCO Avports Mgmt., LLC, 219 N.Y.S.3d 360 (N.Y. App. Div. 2d Dep’t 2024)

(discussing that when a party moves for summary judgment on the ground of triviality, “a picture

… is worth a thousand words.”) Having concluded this way, the remaining arguments for

constructive notice need not be considered.

Finally, Plaintiff’s claim of negligence per se claim likewise fails. There is “a distinction

between State statutes … and local ordinances or administrative rules and regulations on the

other …. violation of a State statute that imposes a specific duty constitutes negligence per se, or

may even create absolute liability, … violation of a municipal ordinance constitutes only

evidence of negligence.” Elliott v. City of New York, 747 N.E.2d 760, 762 (N.Y. 2001) (internal

citations omitted). Plaintiff cites Property Maintenance Code of New York State § 102.2 in the

Complaint and the motion papers. Plaintiff misidentifies the relevant statute. At oral argument,

Plaintiff conceded that 102.2 is the incorrect section. Here, the likely applicable provision would

be the Maintenance Code of New York State § 302.3, which is a regulation incorporated into

New York’s Administrative Code. See N.Y. Comp. Codes R. & Regs. tit. 19, § 1219.2 (“The

2025 PMCNYS is incorporated by reference in Part 1226 of this Title.”); see also 2025

Property Maintenance Code of New York State, Preface (“The Property Maintenance Code of

New York State (PMCNYS) establishes minimum requirements for the maintenance of existing

buildings through regulations that contain clear and specific property maintenance and property

improvement provisions.”) Even if Plaintiff relied upon the correct provision, Plaintiff has not

articulated how the statute or regulation applies here. Rather, Plaintiff’s position is simply that

the trivial defect doctrine does not apply when negligence per se is alleged (ECF No. 35 at 11-

12), while Defendant argues that the speed hump was nevertheless in good repair (ECF No. 39 at

5-6). See Dance v. Town of Southampton, 467 N.Y.S.2d 203, 206 (N.Y. App. Div. 2d Dep’t 1983)

(“Negligence per se is not liability per se, however, because the protected class member still

must establish that the statutory violation was the proximate cause of the occurrence.”) While

Plaintiff references the New York State Building Code and Americans with Disability Act

(“ADA”) § 303.2 (regarding vertical changes in level) in the instant opposition, no reference is

made in the Complaint. (See ECF Nos. 34-3; 35 at 11.) However, Plaintiff asserts that she raised

in her interrogatory responses other statutory violations, including the ADA (See ECF No. 34-6),

and therefore Defendant was on notice as to these additional legal theories.

In New York, common law negligence and negligence per se are distinct and independent

causes of action. See e.g., Colon v. Pohl, 995 N.Y.S.2d 139, 140 (N.Y. App. Div. 2d Dep’t 2014)

(treating the two claims separately); Heyman v. Harooni, 18 N.Y.S.3d 699, 701 (N.Y. App. Div.

2d Dep’t 2015) (same). Indeed, a different standard applies to each. See L.J. v. Zhang, 84 Misc.

3d 901, 909 (N.Y. Sup. Ct. 2024). (“Under common law negligence, there must be a duty owed

that is breached, caused by the defendant's actions leading to the plaintiff's harm. Negligence per

se, however, establishes the elements of duty and breach through the unexcused violation of a

statute.”) Courts in this Circuit treat these types of claims separately as well when assessing New

York negligence claims. See e.g., Rand v. Travelers Indem. Co., 637 F. Supp. 3d 55, 69-71

(S.D.N.Y. 2022); Doe v. Sigma Chi Int'l Fraternity, Inc., No. 23-CV-1452 (AJB) (ML), 2025 WL

2203001, at *8 (N.D.N.Y. Aug. 4, 2025) (“[plaintiff] appears to assert four different causes of

action—negligence, negligent breach of assumed duties, negligence per se, and willful and

wanton misconduct…”).

Section 302.3 of New York’s Property Maintenance Code states “[s]idewalks, walkways,

stairs, driveways, parking spaces and similar areas shall be kept in a proper state of repair, and

maintained free from hazardous conditions.” Negligence per se is a doctrine that permits a

plaintiff to establish a breach of duty by demonstrating that the defendant violated a statute or

regulation enacted to protect a specific class of persons from a particular type of harm. See

Dance, 467 N.Y.S.2d at 206; see also Nassau Cnty. Bridge Auth. v. Olsen, 130 F. Supp. 3d 758-

59 (E.D.N.Y. 2015) (stating that violation of a federal or state statute constitutes negligence per

se under New York law). However, the maintenance code is not a statute but a regulation, and as

such, negligence rather than negligence per se applies. See Conte v. Large Scale Dev. Corp., 176

N.E.2d 53, 57 (N.Y. 1961) (“We have repeatedly held that the violation of a rule of an

administrative body, lacking the force and effect of a substantive legislative enactment, ‘did not

establish negligence per se, but was simply some evidence of negligence.”); see also Toussaint v.

Port Auth. of New York & New Jersey, 188 N.E.3d 571, 581 (N.Y. 2022) (Wilson, J., dissenting)

(internal citations and quotations omitted) (“the well established proposition that whereas a

violation of a statute may of itself establish negligence, a rule or ordinance does not have the

same force. That proposition … is a rule of general application, not a rule specific to the [any

particular law]”); Velazquez v. Tyler Graphics, Ltd., 625 N.Y.S.2d 537, 539 (N.Y. 1995) (internal

citation omitted) (“the violation of a rule of an administrative body, lacking the force and effect

of a substantive legislative enactment, ‘did not establish negligence per se’”).

Both parties address McGrane-Mungo v. Dag Hammarskjold Tower, which articulated

that “[v]iolations of that ordinance and rule, respectively, are ‘not per se non-trivial, and

therefore actionable as a matter of law,’ but they are ‘one factor to consider when deciding the

issue of triviality.’” 243 N.Y.S.3d 52 (N.Y. App. Div. 1st Dep’t 2025). This statement alone does

not relieve Plaintiff from the fact that the defect alleged is trivial. In McGrane-Mungo, a different

state code was at issue, as well as issues regarding experts that should have been left to the jury.

See id. In the instant matter, the undisputed fact that the defect was half an inch coupled with the

lack of argument as to whether the elements of the claim have been established, leads to the

conclusion that the claim must fail. Notably, a speed hump is not intended to protect pedestrians

walking on it. Speed humps are generally known to slow down vehicles to prevent an accident.6

Therefore, even assuming that Plaintiff established the elements of this claim, the injury that

occurred was a result of Plaintiff’s failure to see the open and obvious speed hump meant for

other purposes and not to walk over. See Brown v. United States, No. 07-CV-4867(ADS)

(WDW), 2009 WL 10708812, at *2 (E.D.N.Y. June 3, 2009) (“Unsurprisingly, New York courts

have held that speed bumps and other similar impediments are open and obvious conditions.”)

Nonetheless, the Court finds the reliance upon the statutes misplaced (see Coene v. 3M Co.

ex rel. Minnesota Min. & Mfg. Co., No. 10-CV-6546 (FPG), 2015 WL 5773578, at *5 (W.D.N.Y.

6 See Liam Cope, What Are Speed Humps and How Do They Work?, ENGINEERFIX (Jan. 2, 2026),

https://engineerfix.com/what-are-speed-humps-and-how-do-they-work/ (“A speed hump is a traffic

calming device designed to slow vehicle speeds on local roads by introducing a gradual, rounded vertical

deflection in the pavement. … This engineering solution serves as an alternative to traditional

enforcement, which may not be feasible for constant speed monitoring on every local street.”)

Sept. 30, 2015)(“whether to apply negligence per se, it is necessary at the outset to determine

whether the plaintiff is a member of the discrete, definite class of persons the statute in question

was designed to protect”)), and the negligence per se claim fails as a matter of law. See Brown v.

BT-Newyo, LLC, 941 N.Y.S.2d 343, 345 (N.Y. App. Div. 3d Dep’t 2012) (discussing inter alia that

Section 302.3 is a “violation[] of regulations as opposed to statutory violations” and the plaintiff

failed to raise an issue of fact that a specific statute was violated); see also Conte, 176 N.E.2d at

56–57 (“the court did err, as the Appellate Division held, in charging the jury that the defendants'

violation of the [Board of Standards and Appeals] rule constituted negligence as a matter of law”).

Accordingly, Defendant has met its burden by demonstrating the lack of an actionable

claim under the trivial defect doctrine.

CONCLUSION

For the foregoing reasons, Defendant’s Motion for Summary Judgment (ECF No. 34) is

GRANTED. The Clerk of the Court is respectfully directed to enter judgment in favor of

Defendant and close the case.

Dated: Central Islip, New York.

February 4, 2026

S O O R D E R E D:

James M. Wicks

/S/

JAMES M. WICKS

United States Magistrate Judge