Reviewed September 7, 2026.
In Madero v. Pizzagalli Construction Co., 62 AD3d 670 (2009), the Second Department dismissed claims arising from a small, smooth accumulation on an unfinished concrete floor.
The court considered its dimensions, appearance and the uncontested evidence that comparable irregularities were common and expected at that stage of construction. On that record, the condition was trivial and nonactionable. The court also found no height- or gravity-related risk supporting the Labor Law § 240(1) claim.
Size alone does not decide every case
The decision does not create a universal safe height for a floor defect. Location, lighting, appearance, surrounding conditions and the circumstances of the incident can matter. A small condition may present a different risk in a different setting.
Owners and contractors should preserve accurate photographs with scale, measurements, witness accounts and records identifying the work stage. Address hazards promptly while preserving relevant evidence and notifying insurers. This discussion concerns evaluating and defending construction-site claims.
Kushnick Pallaci PLLC assists clients throughout New York with construction litigation and contractor defense. Contact 631-752-7100 or vtp@kushnicklaw.com.
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