Angelique Sabia-Candero (Associate-New York, NY) and Joseph Laird (Partner-White Plains, NY) obtained summary judgment in Kings County Supreme Court, Brooklyn, New York, on behalf of Wilson Elser’s sports club client in a premises liability action involving an allegedly defective trench drain grate. The plaintiff claimed she was injured while walking her kick scooter down the client’s driveway when its wheel allegedly became caught in a trench drain grate. She maintained that she felt the scooter stop before inexplicably losing consciousness. After regaining consciousness on the sidewalk, she noticed the drain grate for the first time and concluded that the scooter’s wheel had become lodged between the trench frame and grating cover. Critically, however, the plaintiff admitted that she never actually observed the alleged wheel entrapment. 

Angelique and Joe moved for summary judgment seeking dismissal of the complaint, arguing that the plaintiff could not identify the cause of her fall without resorting to speculation. They also established an independent basis for dismissal on lack of notice, supported by the inspection findings of Wilson Elser’s expert, a professional engineer. The engineer determined that the one-inch gap identified by the plaintiff matched the size of prefabricated frame slots, was narrower than the typical drain grates required by the NYC Department of Environmental Protection, and that the grate was properly maintained, code-compliant, and not dangerous or defective.

Although the plaintiff submitted an expert affirmation opining that the grate was unreasonably dangerous and violated various industry standards and regulations, the court rejected plaintiff’s counsel’s argument that the competing opinions created a “battle of the experts” requiring denial of summary judgment. The court found that the plaintiff’s expert relied on general and inapplicable rules and regulations rather than identifying any actual code or regulatory violations, and therefore failed to raise a triable issue of fact. Accordingly, the court granted summary judgment in full, dismissing the plaintiff’s complaint.