Hutchinson v Sheridan Hill House Corp & Trincere v County of Suffolk Cases Discussion

  

Read and brief both cases (Hutchinson v. Sheridan Hill and Trincere v. County of Suffolk) located in this week’s module. Provide respectful feedback to your peers!

Case Name: Hutchinson v. Sheridan Hill House Corp

Facts:

Issue:

Rule:

Holding:

Criticism:

Case Name: Trincere v. County of Suffolk

Facts:

Issue:

Rule:

Holding:

Criticism:

INSTRUCTIONS/PLEASE READ: Please post one (1) initial original comment (min. 250 words)

Hutchinson v. Sheridan Hill House Corp., 26 N.Y.3d 66 (2015)
41 N.E.3d 766, 19 N.Y.S.3d 802, 2015 N.Y. Slip Op. 07578
[2] fact issue existed as to whether missing “chip” on step
tread was trivial defect; and
KeyCite Yellow Flag – Negative Treatment
Distinguished by Baer v. 180 Varick LLC, N.Y.Sup., November 14, 2016
26 N.Y.3d 66
Court of Appeals of New York.
Leonard HUTCHINSON, Appellant,
v.
SHERIDAN HILL HOUSE CORP., Respondent.
Matvey Zelichenko, Appellant,
v.
301 Oriental Boulevard, LLC, Respondent.
Maureen Adler, Appellant,
v.
QPI–VIII LLC, et al., Respondents.
[3] fact issue existed as to whether “clump” or protrusion
in step tread which had been painted over was trivial
defect.
Ordered accordingly.
West Headnotes (14)
[1]
272 Negligence
272XVII Premises Liability
272XVII(D) Breach of Duty
272k1086 Defect or dangerous conditions
generally
Oct. 20, 2015.
Synopsis
Background: Pedestrian brought action against building
owner, seeking to recover damages for injuries he allegedly
sustained when he tripped and fell on sidewalk located
in front of building, and two additional pedestrians
brought actions against different building owners, seeking
to recover for injuries they allegedly sustained while
walking down staircases in buildings. The Supreme Court,
Bronx County, Lizbeth Gonzalez, J., granted summary
judgment in favor of owner in action involving sidewalk
incident. The Supreme Court, Queens County, Butler, J.,
124 A.D.3d 567, 2 N.Y.S.3d 162, and the Supreme Court,
Kings County, Martin, J., 117 A.D.3d 1038, 986 N.Y.S.2d
615, denied owners’ motions for summary judgment
in actions involving staircase incidents. Pedestrian and
owners appealed in their respective actions. The Supreme
Court, Appellate Division, 110 A.D.3d 552, 973 N.Y.S.2d
178, affirmed grant of summary judgment in favor of
owner in action involving sidewalk incident, and the
Supreme Court, Appellate Division, 124 A.D.3d 567,
2 N.Y.S.3d 162 and 124 A.D.3d 567, 2 N.Y.S.3d 162,
reversed denial of owners’ motions in other cases. Leave
to appeal was granted.
Under “trivial defect doctrine,” defect alleged
to have caused injury to a pedestrian may
be trivial as a matter of law, but requires a
holding of triviality to be based on all the
specific facts and circumstances of the case,
not size alone.
55 Cases that cite this headnote
[2]
Negligence
Slips and falls in general
272 Negligence
272XVII Premises Liability
272XVII(D) Breach of Duty
272k1095 Slips and falls in general
In context of trivial defect doctrine, small
difference in height or other physically
insignificant defect is actionable in slip-andfall action if its intrinsic characteristics or
the surrounding circumstances magnify the
dangers it poses, so that it unreasonably
imperils the safety of a pedestrian.
29 Cases that cite this headnote
Holdings: The Court of Appeals, Fahey, J., held that:
[1] defect in sidewalk was trivial;
Negligence
Defect or dangerous conditions generally
[3]
Negligence
Slips and falls in general
272 Negligence
© 2019 Thomson Reuters. No claim to original U.S. Government Works.
1
Hutchinson v. Sheridan Hill House Corp., 26 N.Y.3d 66 (2015)
41 N.E.3d 766, 19 N.Y.S.3d 802, 2015 N.Y. Slip Op. 07578
place where pedestrian would not be obliged
by crowds or physical surroundings to look
only ahead, and object stood alone and was
not hidden or covered in any way so as to
make it difficult to see or to identify as hazard.
272XVII Premises Liability
272XVII(D) Breach of Duty
272k1095 Slips and falls in general
Under trivial defect doctrine, liability in slipand-fall action does not turn upon whether
hole or depression, causing pedestrian to fall,
constitutes “trap.”
2 Cases that cite this headnote
[4]
5 Cases that cite this headnote
[6]
Judgment
Torts
272 Negligence
272XVII Premises Liability
272XVII(D) Breach of Duty
272k1086 Defect or dangerous conditions
generally
228 Judgment
228V On Motion or Summary Proceeding
228k182 Motion or Other Application
228k185.3 Evidence and Affidavits in
Particular Cases
228k185.3(21) Torts
Defendant seeking dismissal on summary
judgment of complaint in slip-and-fall action
on basis that alleged defect is trivial must
make prima facie showing that defect is, under
circumstances, physically insignificant and
that characteristics of defect or surrounding
circumstances do not increase risks it poses;
only then does burden shift to plaintiff to
establish issue of fact.
50 Cases that cite this headnote
[5]
Municipal Corporations
Obstructions on sidewalk or driveway
268 Municipal Corporations
268XII Torts
268XII(C) Defects or Obstructions in Streets
and Other Public Ways
268k808 Liabilities of Abutting Owners
268k808(2) Obstructions on sidewalk or
driveway
Defect in sidewalk abutting owner’s building,
namely, metal object approximately fiveeighths of an inch in diameter, which
protruded about one quarter of an inch above
sidewalk, was trivial, in light of surrounding
circumstances, and thus, under trivial defect
doctrine, owner was not liable for alleged
injuries of pedestrian who tripped and fell
on sidewalk when his right foot “caught” on
object; object was in well-illuminated location
approximately in middle of sidewalk and in
Negligence
Defect or dangerous conditions generally
Trivial defect doctrine is grounded on
fundamental principle that spans all types
of liability in premises liability action: 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.
4 Cases that cite this headnote
[7]
Municipal Corporations
Construction or Condition of Sidewalk,
Footway, or Crosswalk
Negligence
Defect or dangerous conditions generally
268 Municipal Corporations
268XII Torts
268XII(C) Defects or Obstructions in Streets
and Other Public Ways
268k765 Nature of Defects
268k768 Construction or Condition of
Sidewalk, Footway, or Crosswalk
268k768(1) In general
272 Negligence
272XVII Premises Liability
272XVII(D) Breach of Duty
272k1086 Defect or dangerous conditions
generally
Principle underlying trivial defect doctrine,
namely, 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, is
© 2019 Thomson Reuters. No claim to original U.S. Government Works.
2
Hutchinson v. Sheridan Hill House Corp., 26 N.Y.3d 66 (2015)
41 N.E.3d 766, 19 N.Y.S.3d 802, 2015 N.Y. Slip Op. 07578
equally applicable to private landlords and
municipalities.
157X Documentary Evidence
157X(C) Private Writings and Publications
157k359 Photographs and Other Pictures;
Sound Records and Pictures
157k359(3) Condition of premises
5 Cases that cite this headnote
[8]
Photographs that are acknowledged to fairly
and accurately represent accident site may be
used to establish that defect is trivial and not
actionable in slip-and-fall action.
Judgment
Tort cases in general
228 Judgment
228V On Motion or Summary Proceeding
228k181 Grounds for Summary Judgment
228k181(15) Particular Cases
228k181(33) Tort cases in general
Genuine issues of material fact existed as
to whether defect on staircase in lobby of
residential building, namely, missing “chip”
approximately three-and-one-quarter inches
in width and one-half inch in depth, which
was located on walking surface of step tread,
was trivial, and as to whether building owner
had actual or constructive notice of defect,
precluding summary judgment in personal
injury action brought by building visitor who
slipped and fell on stairway against owner.
8 Cases that cite this headnote
[11]
228 Judgment
228V On Motion or Summary Proceeding
228k182 Motion or Other Application
228k185.3 Evidence and Affidavits in
Particular Cases
228k185.3(21) Torts
Defendant moving for summary judgment in
slip-and-fall case is not obliged to demonstrate
lack of notice if it can prevail on another
ground.
Cases that cite this headnote
[9]
Judgment
Tort cases in general
Judgment
Torts
Cases that cite this headnote
[12]
228 Judgment
228V On Motion or Summary Proceeding
228k181 Grounds for Summary Judgment
228k181(15) Particular Cases
228k181(33) Tort cases in general
Judgment
Torts
228 Judgment
228V On Motion or Summary Proceeding
228k182 Motion or Other Application
228k185.3 Evidence and Affidavits in
Particular Cases
228k185.3(21) Torts
Genuine issues of material fact existed
as to whether defect on interior staircase
of apartment building, namely, “clump”
or protrusion in step tread which had
been painted over, was trivial, and as
to whether building owner had actual or
constructive notice of defect, precluding
summary judgment in personal injury action
brought by pedestrian who slipped and fell on
stairway against owner.
Defendant in slip-and-fall case cannot
use trivial defect doctrine to prevail on
summary judgment motion solely on basis of
dimensions of alleged defect, and reviewing
court is obliged to consider all facts and
circumstances presented when it decides
motion.
6 Cases that cite this headnote
Cases that cite this headnote
[13]
[10]
Evidence
Condition of premises
157 Evidence
Judgment
Torts
228 Judgment
228V On Motion or Summary Proceeding
228k182 Motion or Other Application
© 2019 Thomson Reuters. No claim to original U.S. Government Works.
3
Hutchinson v. Sheridan Hill House Corp., 26 N.Y.3d 66 (2015)
41 N.E.3d 766, 19 N.Y.S.3d 802, 2015 N.Y. Slip Op. 07578
228k185.3 Evidence and Affidavits in
Particular Cases
228k185.3(21) Torts
Summary judgment should not be granted
to defendant in slip-and-fall case on basis
of mechanistic disposition of case based
exclusively on dimensions of defect, and
neither should summary judgment be granted
in case in which dimensions of alleged
defect are unknown and photographs and
descriptions inconclusive.
5 Cases that cite this headnote
[14]
Judgment
Torts
228 Judgment
228V On Motion or Summary Proceeding
228k182 Motion or Other Application
228k185.3 Evidence and Affidavits in
Particular Cases
228k185.3(21) Torts
In deciding whether defendant in slip-andfall case has met its burden, on motion for
summary judgment, of showing prima facie
triviality, as required for trivial defect doctrine
to apply, court must, except in unusual
circumstances, avoid interjecting question of
whether plaintiff might have avoided accident
simply by placing his feet elsewhere; in sum,
there are no shortcuts to summary judgment
in slip-and-fall case.
7 Cases that cite this headnote
Wingate, Russotti, Shapiro & Halperin, LLP, New York
City (David M. Schwarz of counsel), for appellant in the
second above-entitled action.
Gannon, Rosenfarb, Balletti & Drossman, New York
City (Lisa L. Gokhulsingh of counsel), for respondent in
the second above-entitled action.
Margaret G. Klein, Defense Association of New York,
Inc. (Andrew Zajac, Dawn C. DeSimone, Rona L.
Platt and Jonathan T. Uejio of counsel), for Defense
Association of New York, Inc., amicus curiae, in the
second above-entitled action.
Law Offices of Vel Belushin, P.C., Brooklyn (Georgette
Hamboussi of counsel), for appellant in the third aboveentitled action.
McGaw, Alventosa & Zajac, Jericho (Joseph Horowitz
of counsel), for respondents in the third above-entitled
action.
OPINION OF THE COURT
FAHEY J.
**769 *72 These cases teach that it is usually more
difficult to define what is trivial than what is significant.
The common factual and procedural thread among the
three appeals before us is that an individual tripped on
a defect in a sidewalk or stairway, and was injured, but
was foreclosed from going to trial on the ground that the
defect was characterized as too trivial to be actionable. We
hold that the Appellate Division erred in dismissing the
complaint in two of the three cases.
Attorneys and Law Firms
***805 Pollack, Pollack, Isaac & DeCicco, LLP, New
York City (Brian J. Isaac of counsel) and Getz &
Braverman, P.C. (Michael Braverman of counsel), for
appellant in the first above-entitled action.
Kaufman Dolowich & Voluck, LLP, Hackensack, New
Jersey (Kevin J. O’Donnell of counsel), for respondent in
the first above-entitled action.
I.
On April 23, 2009, plaintiff Leonard Hutchinson was
walking on a concrete sidewalk in the Bronx when his
right foot “caught” on a metal object protruding from
the sidewalk and he fell, sustaining injuries. Hutchinson
commenced this personal injury action against Sheridan
Hill House Corp. The sidewalk where Hutchinson tripped
abuts a building owned by Sheridan, which is responsible
for maintaining the sidewalk in a reasonably safe
condition under Administrative Code of the City of New
York § 7–210(a).
© 2019 Thomson Reuters. No claim to original U.S. Government Works.
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Hutchinson v. Sheridan Hill House Corp., 26 N.Y.3d 66 (2015)
41 N.E.3d 766, 19 N.Y.S.3d 802, 2015 N.Y. Slip Op. 07578
Discovery ensued. Hutchinson was deposed, along with
a housing development director associated with Sheridan
and two of its porters. Testimony was given that the
sidewalk had been replaced in the summer of 2007. For
his part, Hutchinson described the metal object as being
“screwed on in the concrete” and gave rough estimates of
its dimensions.
An employee of Sheridan’s counsel visited the sidewalk
in December 2010 and photographed and measured the
metal object. He concluded that the object, cylindrical in
shape, projected “between one eighth of an inch … and
one quarter *73 of an inch” above the sidewalk and was
“approximately five eighths of an inch” in diameter. 1
Sheridan moved for summary judgment dismissing the
complaint, asserting that **770 ***806 the defect
was trivial in nature and hence nonactionable and that
Sheridan did not create, or have actual or constructive
notice of, the defect. Sheridan submitted, among other
documents, an affidavit of the law firm employee
who had photographed the metal protrusion, giving
his measurements; the photographs; the deposition
testimony; and the engineer’s report. In response,
Hutchinson contended that there are issues of fact
regarding whether the metal object created a hazard in
the nature of a trap or snare and whether Sheridan had
constructive notice of its existence.
Supreme Court granted summary judgment in favor of
Sheridan on the ground that it lacked notice of the
defect (2012 N.Y. Slip Op. 33804[U] [2012] ). 2 The
Appellate Division affirmed, holding that Sheridan had
demonstrated that it did not have notice of the defect
and, in addition, that the metal object’s “minor height
differential alone is insufficient to establish the existence
of a dangerous or defective condition” (110 A.D.3d 552,
553, 973 N.Y.S.2d 178 [1st Dept.2013] ).
Two Justices dissented, reminding the majority that “
‘there is no minimal dimension test or per se rule that a
defect must be of a certain minimum height or depth in
order to be actionable’ ” (id. at 554, 973 N.Y.S.2d 178
[Acosta, J.P., and Saxe, J., dissenting], quoting Trincere v.
County of Suffolk, 90 N.Y.2d 976, 977, 665 N.Y.S.2d 615,
688 N.E.2d 489 [1997] ). Moreover, the dissenters would
have held that “an issue of fact remains as to whether the
protruding piece of metal may be characterized as a trap or
a snare such as could, without warning, snag a passerby’s
shoe” (110 A.D.3d at 556, 973 N.Y.S.2d 178 [Acosta, J.P.,
and Saxe, J., dissenting] ).
Hutchinson appeals pursuant to CPLR 5601(a). We
affirm.
II.
On May 2, 2010, plaintiff Matvey Zelichenko fell while
walking down a staircase in the lobby of a residential
building in *74 Brooklyn he was visiting for the first time.
The staircase has five risers or vertical elements. It has
four step treads, made of terrazzo, 12 inches in horizontal
depth, each with a one-inch nosing that projects over
the riser below. There are handrails on each side, and
Zelichenko made use of one.
On the second step tread from the bottom, Zelichenko’s
right leg “got caught” when he stepped on a part of
the nosing where there was a missing piece or “chip.”
His leg twisted and he fell, with resulting injuries.
Zelichenko commenced this personal injury action against
301 Oriental Boulevard, LLC, the owner of the building.
During discovery, Zelichenko and the superintendent
of the building gave deposition testimony. Zelichenko
identified several photographs as fairly and accurately
depicting the stairway and, in particular, the area of
the missing “chip.” In one such photograph, a shoe-clad
foot is shown on the step tread in question, next to an
indentation in the nosing of the step; the toe of the shoe
projects over the nosing.
301 Oriental moved for summary judgment dismissing
the complaint, contending that the alleged defect in the
step was trivial and nonactionable as a matter of law
and that it was not on notice of the defect. 301 Oriental
relied on an affidavit of an engineering consultant,
Jeffrey J. Schwalje, who had inspected, measured, **771
***807 and photographed the staircase in May 2011; the
photographs; and the deposition testimony.
Schwalje measured the dimensions of the missing “chip”
as 3.25 inches in width and one-half inch in depth.
Schwalje stated that the chipped step tread in question
“did not present a tripping or slipping hazard. The small
chip in the nosing is forward of a person’s foot contact
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Hutchinson v. Sheridan Hill House Corp., 26 N.Y.3d 66 (2015)
41 N.E.3d 766, 19 N.Y.S.3d 802, 2015 N.Y. Slip Op. 07578
area and would be safely negotiated. There was more
than sufficient space behind the chip for an individual
to safely plant his/her foot.” He further opined that “[a]
person descending the stairway would not bear any weight
on the chipped space or any other part of the step edge
in the subject step tread unless his/her foot completely
overstepped the tread.”
Zelichenko opposed the motion, relying on the
photographs of the staircase and an affidavit of another
engineer, Stuart K. Sokoloff. With regard to the size of
the “chip,” Sokoloff agreed with Schwalje’s assessment of
the width of the “chip” but, based on the photographs, he
concluded that the depth of the missing area was one inch
in places.
*75 Sokoloff relied on a monograph entitled “The
Staircase—Studies of Hazards, Falls and Safer Design”
by architecture professor John Templer. According to
Sokoloff, Professor Templer, after explaining the physical
processes whereby a human being walks down stairs,
“states that one of the factors that may cause a fall is a
broken tread” on a stairway, because “[w]hen our gait on
stairs is disrupted or altered we can lose our balance or
stumble especially when a defect is unsuspected, unknown,
unanticipated and unexpected.” Sokoloff added that “[i]t
is necessary that all stair tread[s] be uniform without
missing sections to support a person descending a stair
in order for [the] person to maintain … balance when
negotiating the steps.”
Sokoloff criticized Schwalje’s assertion that there was
more than enough space behind the chip for an individual
to place his or her foot. Citing Professor Templer,
Sokoloff opined that “the foot can make contact with
the end of the nosing.” Sokoloff explained the process as
follows:
“As the other foot moves down the
stairs, the foot currently in contact
with the tip of the tread rolls forward
until that second foot contacts the
tread/ step below. If a portion of
the tip/nosing is missing during
the stepping process … the contact
area[ ] of the front of [the] foot is
compromised/reduced to an extent
that there would be insufficient tread
area to support the ball/front of
[the] foot with full body weight on
it, and the foot could roll due to
lack of support. This explains the
mechanism of the plaintiff’s fall.”
Supreme Court denied 301 Oriental’s motion, ruling that
issues of fact existed as to actual or constructive notice
and as to whether the alleged defect was trivial as a matter
of law. The Appellate Division reversed Supreme Court’s
order and granted 301 Oriental’s motion.
The Appellate Division stated that
“[t]he evidence revealed that the alleged defect consisted
of a chip measuring about 3.25 inches wide and about .5
inch deep, located almost entirely on the edge of the
second to last step from the bottom, and not on the
walking surface. Upon an examination of all of the
facts presented, we find that the alleged defect was
trivial, did not possess *76 the characteristics of a trap
or nuisance, and, therefore, was not actionable” (117
A.D.3d 1038, 1040, 117 A.D.3d 1038 [2d Dept.2014] ).
***808 **772 We granted Zelichenko leave to appeal
(24 N.Y.3d 904, 2014 WL 4548565 [2014] ) and now
reverse.
III.
On March 30, 2010, plaintiff Maureen Adler was injured
in a fall on the interior staircase of the apartment
building where she lived. As she recalled in her deposition
testimony, she was walking down the stairs when her
right foot “got caught” on “a big clump in the middle
of the stair”—a protrusion of some sort in a step tread
—which had “been painted over.” Adler commenced
a personal injury action against QPI–VIII LLC and
Vantage Management Services, LLC, the owner and
manager of the building.
Adler’s counsel photographed the protrusion in the step,
and at her deposition Adler acknowledged that the
photographs fairly and accurately depicted the stairway
and the “clump.” Adler testified that the stairway was
illuminated by a 60–watt light bulb, that she was
“[p]robably looking down” as she descended the stairs,
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Hutchinson v. Sheridan Hill House Corp., 26 N.Y.3d 66 (2015)
41 N.E.3d 766, 19 N.Y.S.3d 802, 2015 N.Y. Slip Op. 07578
that she did not recall any dirt or debris on the stairs, and
that they were not slippery or cracked. She explained that
she was very familiar with the stairway and in fact had seen
the “clump” before on previous occasions.
The building superintendent testified that he had not
noticed any uneven surface on the stairs prior to Adler’s
accident nor received any complaints about such. He
stated that the stairs had been painted some “three or four
years before” the date of the accident.
Defendants moved for summary judgment dismissing the
complaint, asserting that the alleged defect was trivial in
nature and hence nonactionable and that they had not
created the defect and did not have actual or constructive
notice of its existence. They relied on Adler’s photographs
as well as the deposition transcripts. Notably, defendants
did not produce any measurements or other evidence of
the dimensions of the “clump.” 3
Supreme Court denied the motion, ruling that defendants
had failed to establish as a matter of law that they
neither created *77 the alleged defect nor had actual
or constructive notice of it, or that the defect was
trivial. The Appellate Division reversed and granted the
motion, ruling that “[t]he evidence, and in particular the
photographs, established that the alleged defect was trivial
as a matter of law and did not possess the characteristics
of a trap or nuisance, and, therefore, was not actionable.
In opposition, the plaintiff failed to raise a triable issue
of fact” (124 A.D.3d 567, 568–569, 2 N.Y.S.3d 162 [2d
Dept.2015] [citations omitted] ). The Appellate Division
did not pass on the issue of notice. We granted Adler leave
to appeal (25 N.Y.3d 903, 2015 WL 1526006 [2015] ) and
now reverse.
IV.
In Trincere v. County of Suffolk, 90 N.Y.2d 976, 665
N.Y.S.2d 615, 688 N.E.2d 489 (1997), this Court held that
“there is no ‘minimal dimension test’ or per se rule that
a defect must be of a certain minimum height or depth
in order to be actionable”(id. at 977, 665 N.Y.S.2d 615,
688 N.E.2d 489), and therefore that granting summary
judgment to a defendant “based exclusively on the
dimension[s] of the … defect is unacceptable” (id. at 977–
978, 665 N.Y.S.2d 615, 688 N.E.2d 489). Plaintiff Trincere
tripped over a concrete paving slab, raised about a half
inch in relation to the surrounding slabs in a plaza, and
the lower courts dismissed her complaint, ruling **773
***809 the defect trivial as a matter of law. We held
that a court must consider “all the facts and circumstances
presented” (id. at 977, 665 N.Y.S.2d 615, 688 N.E.2d
489) before concluding that no issue of fact exists, and
emphasized that these factors will include, but should not
be limited to, “the dimension[s] of the defect at issue” (id.).
For this reason, we noted that “whether a dangerous or
defective condition exists on the property of another so
as to create liability … is generally a question of fact
for the jury” (id. [internal quotation marks omitted] ).
Nevertheless, we noted that the Appellate Division had
in fact considered all “the facts presented, including the
width, depth, elevation, irregularity and appearance of the
defect along with the time, place and circumstance of the
injury” (Trincere, 90 N.Y.2d at 978, 665 N.Y.S.2d 615, 688
N.E.2d 489 [internal quotation marks omitted] ), and we
concluded that it had properly ruled that no issue of fact
existed (id.).
[1] [2] Trincere thus recognizes the doctrine that a defect
alleged to have caused injury to a pedestrian may be trivial
as a matter of law, but requires a holding of triviality
to be based on all the specific facts and circumstances
of the case, not size alone. In our opinion, we cited
Guerrieri v. Summa, 193 A.D.2d 647, 598 N.Y.S.2d 4 (2d
Dept.1993), which expressed the trivial defect doctrine
*78 as the principle that a defendant “ ‘may not be cast
in damages for negligent maintenance by reason of trivial
defects on a walkway, not constituting a trap or nuisance,
as a consequence of which a pedestrian might merely
stumble, stub his toes, or trip over a raised projection’
” (id. at 647, 598 N.Y.S.2d 4, quoting Liebl v. Metropolitan
Jockey Club, 10 A.D.2d 1006, 1006, 204 N.Y.S.2d 670 [2d
Dept.1960], rearg. denied 11 A.D.2d 946, 206 N.Y.S.2d
552 [2d Dept.1960]; see also e.g. Trionfero v. Vanderhorn,
6 A.D.3d 903, 903–904, 774 N.Y.S.2d 612 [3d Dept.2004];
Squires v. County of Orleans, 284 A.D.2d 990, 990, 726
N.Y.S.2d 536 [4th Dept.2001]; Morales v. Riverbay Corp.,
226 A.D.2d 271, 271, 641 N.Y.S.2d 276 [1st Dept.1996] ).
Trincere and the line of cases in which it stands establish
the principle that a small difference in height or other
physically insignificant defect is actionable if its intrinsic
characteristics or the surrounding circumstances magnify
the dangers it poses, so that it “unreasonably imperil[s] the
safety of” a pedestrian (Wilson v. Jaybro Realty & Dev.
Co., 289 N.Y. 410, 412, 46 N.E.2d 497 [1943] ).
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Hutchinson v. Sheridan Hill House Corp., 26 N.Y.3d 66 (2015)
41 N.E.3d 766, 19 N.Y.S.3d 802, 2015 N.Y. Slip Op. 07578
[3] The repetition of the phrase “not constituting a
trap” in many Appellate Division opinions should not
be taken to limit the means by which a plaintiff may
demonstrate a question of fact concerning the hazard
posed by a physically small defect. Liability does not
“turn[ ] upon whether the hole or depression, causing the
pedestrian to fall, … constitutes ‘a trap’ ” (Loughran v.
City of New York, 298 N.Y. 320, 321–322, 83 N.E.2d
136 [1948] ). The case law provides numerous examples
of factors that may render a physically small defect
actionable, including a jagged edge (see e.g. Lupa v. City
of Oswego, 117 A.D.3d 1418, 1419, 985 N.Y.S.2d 361
[4th Dept.2014]; Jacobsen v. Krumholz, 41 A.D.3d 128,
128–129, 836 N.Y.S.2d 603 [1st Dept.2007] ); a rough,
irregular surface (see e.g. Tese–Milner v. 30 E. 85th St.
Co., 60 A.D.3d 458, 458, 873 N.Y.S.2d 905 [1st Dept.2009]
); the presence of other defects in the vicinity (see e.g.
Young v. City of New York, 250 A.D.2d 383, 384, 673
N.Y.S.2d 378 [1st Dept.1998] ); poor lighting (see e.g.
McKenzie v. Crossroads Arena, 291 A.D.2d 860, 860–
861, 738 N.Y.S.2d 779 [4th Dept.2002], lv. dismissed 98
N.Y.2d 647, 745 N.Y.S.2d 504, 772 N.E.2d 607 [2002]
); or a location—such as a parking **774 ***810 lot,
premises entrance/exit, or heavily traveled walkway—
where pedestrians are naturally distracted from looking
down at their feet (see e.g. Brenner v. Herricks Union Free
Sch. Dist., 106 A.D.3d 766, 767, 964 N.Y.S.2d 605 [2d
Dept.2013]; Wilson v. Time Warner Cable, 6 A.D.3d 801,
802, 774 N.Y.S.2d 584 [3d Dept.2004]; George v. New
York City Tr. Auth., 306 A.D.2d 160, 161, 761 N.Y.S.2d
182 [1st Dept.2003]; Glickman v. City of New York,
297 A.D.2d 220, 221, 746 N.Y.S.2d 24 [1st Dept.2002];
Argenio v. Metropolitan Transp. Auth., 277 A.D.2d 165,
166, 716 N.Y.S.2d 657 [1st Dept.2000], rearg. denied 2001
N.Y.App.Div. LEXIS 1472 [1st Dept.2001]; Jacobsen, 41
A.D.3d at 128–129, 836 N.Y.S.2d 603; Tesak v. Marine
Midland Bank, 254 A.D.2d 717, 718, 678 N.Y.S.2d 226
[4th Dept.1998] ).
*79 Our survey of such cases indicates that the lower
courts, appropriately, find physically small defects to
be actionable when their surrounding circumstances
or intrinsic characteristics make them difficult for a
pedestrian to see or to identify as hazards or difficult
to traverse safely on foot. Attention to the specific
circumstances is always required and undue or exclusive
focus on whether a defect is a “trap” or “snare” is not in
keeping with Loughran and Trincere.
[4] Finally, the trivial defect doctrine is best understood
with our well-established summary judgment standards
in mind. In a summary judgment motion, the movant
must make a prima facie showing of entitlement to
judgment as a matter of law before the burden shifts to
the party opposing the motion to establish the existence of
a material issue of fact (see Alvarez v. Prospect Hosp., 68
N.Y.2d 320, 324, 508 N.Y.S.2d 923, 501 N.E.2d 572 [1986]
). A defendant seeking dismissal of a complaint on the
basis that the alleged defect is trivial must make a prima
facie showing that the defect is, under the circumstances,
physically insignificant and that the characteristics of the
defect or the surrounding circumstances do not increase
the risks it poses. Only then does the burden shift to the
plaintiff to establish an issue of fact.
V.
We now apply these principles to the cases before us on
appeal.
[5] In Hutchinson, defendant Sheridan met its burden
of making a prima facie showing that the cylindrical
projection was trivial as a matter of law by producing
measurements indicating that it was only about one
quarter of an inch in height and about five eighths
of an inch in diameter, together with evidence of the
surrounding circumstances. The dimensions are set out
in the record on appeal, which contains photographs
showing ruler measurements of the object.
Plaintiff Hutchinson, seeking to show a triable issue of fact
concerning features of the defect that would magnify the
hazard it presents, asserts that the object had an abrupt
edge, was irregular in shape, and was firmly inserted
into the sidewalk, so that, in the words of the dissenting
Justices at the Appellate Division, it “could, without
warning, snag a passerby’s shoe” (110 A.D.3d at 556, 973
N.Y.S.2d 178 [Acosta, J.P., and Saxe, J., dissenting] ).
Hutchinson also suggests that he was not required to look
down at his feet while walking along the sidewalk.
The characteristics enumerated by Hutchinson—the
abruptness of the projecting edge, the alleged irregularity
of its shape, *80 and its rigidity and firm insertion
into the sidewalk—are not dispositive, being true of
many contours in a sidewalk. Moreover, contrary to
the assertions of Hutchinson and the Appellate Division
© 2019 Thomson Reuters. No claim to original U.S. Government Works.
8
Hutchinson v. Sheridan Hill House Corp., 26 N.Y.3d 66 (2015)
41 N.E.3d 766, 19 N.Y.S.3d 802, 2015 N.Y. Slip Op. 07578
dissenters, **775 ***811 the test established by the
case law in New York is not whether a defect is capable
of catching a pedestrian’s shoe. Instead, the relevant
questions are whether the defect was difficult for a
pedestrian to see or to identify as a hazard or difficult
to pass over safely on foot in light of the surrounding
circumstances.
Here, the metal object that Hutchinson tripped over,
protruding only about a quarter of an inch above
the sidewalk, was in a well-illuminated location
approximately in the middle of the sidewalk and in a
place where a pedestrian would not be obliged by crowds
or physical surroundings to look only ahead. The object
stood alone and was not hidden or covered in any way so
as to make it difficult to see or to identify as a hazard.
Its edge was not jagged and the surrounding surface
was not uneven. Taking into account all the facts and
circumstances presented, including but not limited to the
dimensions of the metal object, we conclude that the defect
was trivial as a matter of law.
The Appellate Division properly ruled that the defect was
not actionable. There is accordingly no need for us to
address Sheridan’s alternative contention based on lack of
actual or constructive notice.
VI.
Plaintiff Zelichenko argues that the trivial defect doctrine
should be limited to municipal defendants or to cases
involving accidents on sidewalks, and does not apply
to his fall on an interior staircase. He asserts that
absent the trivial defect doctrine, a municipality would
be burdened with inspecting, maintaining and repairing
miles of sidewalk so as to rid public paths of every slight
defect resulting from weathering and from expansion and
contraction with changes in temperature. By contrast,
Zelichenko points out, this policy consideration does not
apply to owners of buildings, who may reasonably be
required to ensure that interior walkways and staircases
are safe. Moreover, he argues, expectations differ in
varying locations and a person typically expects indoor
surfaces to be more uniform and level, because they are
not subject to so many changes due to the forces of nature.
and the trivial *81 defect doctrine may have salutary
consequences for municipalities, we do not accept
Zelichenko’s invitation to reframe the law of personal
injury liability so radically. 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 (Beltz v. City
of Yonkers, 148 N.Y. 67, 70, 42 N.E. 401 [1895] ). This
principle is equally applicable to private landlords and
municipalities. Moreover, the trivial defect doctrine has
been applied to defects on stairways, including those that
are inside privately owned buildings (see e.g. Cassizzi v.
Fordham Univ., 101 A.D.3d 645, 646, 957 N.Y.S.2d 856
[1st Dept.2012]; Sawicki v. Conklin Realty Co., LLC, 94
A.D.3d 1083, 1083, 943 N.Y.S.2d 208 [2d Dept.2012];
Vachon v. State of New York, 286 A.D.2d 528, 530, 729
N.Y.S.2d 212 [3d Dept.2001]; Slate v. Fredonia Cent.
School Dist., 256 A.D.2d 1210, 1210–1211, 682 N.Y.S.2d
507 [4th Dept.1998] ).
[8] Zelichenko’s further contentions, however, convince
us that reversal is required. The Appellate Division in
Zelichenko, in examining “all of the facts presented” (117
A.D.3d at 1040, 986 N.Y.S.2d 615) as required by
Trincere, concluded as a matter of law that the defect
was trivial, **776 ***812 stating in particular that the
“chip” was “located almost entirely on the edge of the …
step … and not on the walking surface” (id.). This was
error. 4
In particular, viewing the evidence in the light most
favorable to Zelichenko, as we must in this procedural
posture, we conclude that the Appellate Division
erroneously decided that the “chip” was not on the
walking surface of a step tread. Zelichenko’s *82 expert,
Sokoloff, citing Professor Templer, explained that, when
descending a stairway, a human “foot can make contact
with the end of the nosing” so that the walking surface of a
step tread extends to the nosing. Indeed, in the photograph
in the record of a foot positioned next to the “chip,” the
toe of the shoe extends across and over the nosing in a way
that does not appear forced or unnatural.
Moreover, even if there were room on the step for a person
to place his or her foot behind the defect, it would not
[6]
[7] While it is true that pedestrian expectations follow as a matter of law that the defect is “not on the
differ between exterior and interior walking surfaces,
walking surface.” That a person may place his or her foot
© 2019 Thomson Reuters. No claim to original U.S. Government Works.
9
Hutchinson v. Sheridan Hill House Corp., 26 N.Y.3d 66 (2015)
41 N.E.3d 766, 19 N.Y.S.3d 802, 2015 N.Y. Slip Op. 07578
on a step in such a way as to avoid the nosing does not
imply that every person will always do so. What counts
here is not whether a person could avoid the defect, but
whether a person would invariably avoid the defect while
walking in a manner typical of human beings descending
stairs. A defect underneath a handrail (see Puma, 55
A.D.3d at 585–586, 865 N.Y.S.2d 630) will presumably
not be on the walking surface, but a defect in a place where
a person may in the normal course of events place the
weight of his or her body, resting on a foot, may be on the
walking surface.
Here, the step tread had a missing piece, of irregular shape,
3.25 inches in width and at least one-half inch in depth, on
the nosing of the step, where a person might step, and the
record contains an expert affidavit explaining the necessity
for step treads to be of uniform horizontal depth. After
examining all the pertinent facts and circumstances of this
case, as we are required to, we conclude that a material
triable issue of fact exists regarding whether the defect was
trivial.
For these reasons, the Appellate Division erred in
concluding that the defect was nonactionable. Moreover,
we agree with Supreme Court that an issue of fact exists
as to actual or constructive notice (see generally Gordon
v. American Museum of Natural History, 67 N.Y.2d 836,
837, 501 N.Y.S.2d 646, 492 N.E.2d 774 [1986]; Taylor
v. New York City Tr. Auth., 48 N.Y.2d 903, 904, 424
N.Y.S.2d 888, 400 N.E.2d 1340 [1979] ). Therefore,
the Appellate Division erred in granting 301 Oriental’s
summary judgment motion.
***813 **777 VII.
[9]
In Adler, the summary judgment record,
which included deposition testimony and indistinct
photographs, but no measurements of the alleged defect,
is inconclusive. Without evidence of the dimensions of the
“clump,” it is not possible to determine whether it is the
kind of physically small defect to *83 which the trivial
defect doctrine applies. We hold that defendants failed to
meet their initial burden of making a prima facie showing
of entitlement to judgment as a matter of law. The burden
therefore did not shift to Adler to establish the existence
of a material triable issue of fact.
[10] We do not imply that there are no cases in which
a fact-finding court could examine photographs and
justifiably infer from them as a matter of law that an
elevation or depression or other defect is so slight as to be
trivial as a matter of law (see e.g. Outlaw v. Citibank, N.A.,
35 A.D.3d 564, 565, 826 N.Y.S.2d 642 [2d Dept.2006]
[“The photographs of the stair introduced into evidence
by the plaintiff show the patch to be a small, worn,
rectangular-shaped area on the metal safety treads at
the edge of the step. It has no sharp edges and appears
shallow”]; Julian v. Sementelli, 234 A.D.2d 866, 867,
651 N.Y.S.2d 678 [3d Dept.1996] [“Our examination of
those photographs shows only a slight height differential
between two slabs of the sidewalk”] ). Photographs that
are acknowledged to “fairly and accurately represent the
accident site may be used to establish that a defect is trivial
and not actionable” (Schenpanski v. Promise Deli, Inc., 88
A.D.3d 982, 984, 931 N.Y.S.2d 650 [2d Dept.2011] ). But
we hold that the photographs in this case, whether alone or
combined with the deposition testimony, cannot support
a ruling of triviality as a matter of law.
[11] For this reason, we agree with Adler’s principal
argument that the Appellate Division erred in holding
that the alleged defect was trivial. Contrary to Adler’s
subsidiary contention, however, the Appellate Division
committed no error in declining to rule on the notice issue,
after it ruled in defendants’ favor on another basis. A
defendant moving for summary judgment in a slip-andfall case is not obliged to demonstrate lack of notice if it
can prevail on another ground (see generally Bachrach v.
Waldbaum, Inc., 261 A.D.2d 426, 426, 689 N.Y.S.2d 531
[2d Dept.1999]; Colt v. Great Atl. & Pac. Tea Co., 209
A.D.2d 294, 294–295, 618 N.Y.S.2d 721 [1st Dept.1994] ).
Nevertheless, because we rule against defendants on their
other ground, we must consider the notice issue, and we
hold that defendants failed to meet their burden to make
a prima facie showing that they neither created nor had
notice of the defect as a matter of law. The deposition
testimony left significant doubt as to who painted the
staircase, when it was painted, and whether the “clump”
was “visible and apparent and … exist[ed] for a sufficient
length of time prior to the accident to permit defendant’s
employees to discover and remedy it” (Gordon, 67 N.Y.2d
at 837, 501 N.Y.S.2d 646, 492 N.E.2d 774).
© 2019 Thomson Reuters. No claim to original U.S. Government Works.
10
Hutchinson v. Sheridan Hill House Corp., 26 N.Y.3d 66 (2015)
41 N.E.3d 766, 19 N.Y.S.3d 802, 2015 N.Y. Slip Op. 07578
denied; and, in Adler, the order of the Appellate Division
should be reversed, with costs, and defendants’ motion for
[12] [13] [14] Trincere stands for the proposition that summary judgment denied.
a defendant cannot use the trivial defect doctrine to
In Hutchinson v. Sheridan Hill House Corp.: Order
prevail on a summary judgment motion solely on the
affirmed, with costs.
basis of the dimensions of an alleged defect, and that
the reviewing court is obliged to consider all the facts
and circumstances presented when it decides the motion.
Summary judgment should not be granted to a defendant
Chief Judge LIPPMAN and Judges PIGOTT, RIVERA,
on the basis of “a mechanistic disposition of a case based
ABDUS–SALAAM and STEIN concur.
exclusively on the dimension[s] of the … defect” (Trincere,
In Zelichenko v. 301 Oriental Blvd., LLC: Order reversed,
**778 ***814 90 N.Y.2d at 977–978, 665 N.Y.S.2d 615,
with costs, and defendant’s motion for summary judgment
688 N.E.2d 489), and neither should summary judgment
denied.
be granted in a case in which the dimensions of the
alleged defect are unknown and the photographs and
descriptions inconclusive (see section VII, discussing Adler
Chief Judge LIPPMAN and Judges PIGOTT, RIVERA,
). Moreover, in deciding whether a defendant has met its
ABDUS–SALAAM and STEIN concur.
burden of showing prima facie triviality, a court must—
In Adler v. QPI–VIII LLC: Order reversed, with costs, and
except in unusual circumstances not present here—avoid
defendants’ motion for summary judgment denied.
interjecting the question whether the plaintiff might have
*84 VIII.
avoided the accident simply by placing his feet elsewhere
(see section VI, discussing Zelichenko ). In sum, there are
no shortcuts to summary judgment in a slip-and-fall case.
Accordingly, in Hutchinson, the order of the Appellate
Division should be affirmed, with costs; in Zelichenko,
the order of the Appellate Division should be reversed,
with costs, and defendant’s motion for summary judgment
Chief Judge LIPPMAN and Judges PIGOTT, RIVERA,
ABDUS–SALAAM and STEIN concur.
All Citations
26 N.Y.3d 66, 41 N.E.3d 766, 19 N.Y.S.3d 802, 2015 N.Y.
Slip Op. 07578
Footnotes
1
2
3
4
A consulting engineer retained by Hutchinson’s counsel visited the accident site in May 2011, by which time the protruding
object had been removed. In an unsworn report submitted by Hutchinson as an expert witness disclosure, the engineer
stated, without explanation, his opinion that the diameter of the metal object had been about 1.25 inches.
In dicta, Supreme Court found the engineer’s report admissible under Kearse v. New York City Tr. Auth., 16 A.D.3d 45,
47 n. 1, 789 N.Y.S.2d 281 (2d Dept.2005), but inconclusive, and did not credit his estimate of the object’s diameter.
Adler herself did not offer a measurement of the protrusion at any stage of this action.
The Second Department has attached significance to whether a defect was on “the walking surface” of a stairway in a
number of recent cases. In Maciaszek v. Sloninski, 105 A.D.3d 1012, 1013, 963 N.Y.S.2d 382 (2d Dept.2013), the Second
Department held a hole in a staircase to be trivial as a matter of law on the basis of circumstances that included that the
hole “was one inch in diameter, half an inch deep, and located at the edge of the step.” In Grosskopf v. 8320 Parkway
Towers Corp., 88 A.D.3d 765, 766, 930 N.Y.S.2d 661 (2d Dept.2011), the Court held that the alleged defect “consisted of
a chip measuring less than two inches wide, located almost entirely on the nosing of the … step … and not on the walking
surface,” and concluded that the “chip” was trivial as a matter of law. In an earlier, distinguishable case, Puma v. New
York City Tr. Auth., 55 A.D.3d 585, 865 N.Y.S.2d 630 (2d Dept.2008), the Second Department held that there was no
defective or dangerous condition because the plaintiff’s fall in a subway station occurred when his foot became caught
in a drainage canal “located at the extreme edge of the stairway tread, underneath the handrail” (id. at 585–586, 865
N.Y.S.2d 630), rather than on a walking surface. We take no position on whether these cases were correctly decided.
End of Document
© 2019 Thomson Reuters. No claim to original U.S. Government Works.
© 2019 Thomson Reuters. No claim to original U.S. Government Works.
11
Trincere v. County of Suffolk, 90 N.Y.2d 976 (1997)
688 N.E.2d 489, 665 N.Y.S.2d 615, 1997 N.Y. Slip Op. 08600
268k821 Questions for Jury
268k821(6) Construction or condition of
sidewalk, footway, or crosswalk
KeyCite Yellow Flag – Negative Treatment
Declined to Follow by Howard v. Andy’s Store for Men, Ala.Civ.App.,
February 4, 2000
There is no per se rule that municipal liability,
in a case involving minor defects in pavement,
turns upon whether hole or depression,
causing pedestrian to fall, is four inches—or
any other number of inches—in depth; rather,
whether dangerous or defective condition
exists so as to create liability depends on
peculiar facts and circumstances of each case
and is generally question of fact for jury.
90 N.Y.2d 976
Court of Appeals of New York.
Esther TRINCERE, Appellant,
v.
COUNTY OF SUFFOLK, Respondent.
Oct. 21, 1997.
Synopsis
Pedestrian who fell after tripping over half inch raise of
slab outside county building brought negligence action
against county. The Supreme Court, Suffolk County,
Floyd, J., entered judgment as matter of law for county
at close of evidence. Pedestrian appealed. The Supreme
Court, Appellate Division, 232 A.D.2d 400, 648 N.Y.S.2d
126, affirmed on basis that defect was too trivial to be
dangerous. Pedestrian appealed. The Court of Appeals,
held that, given facts and circumstances of case, defect in
sidewalk was not actionable.
232 Cases that cite this headnote
[2]
268 Municipal Corporations
268XII Torts
268XII(C) Defects or Obstructions in Streets
and Other Public Ways
268k810 Actions for Injuries
268k821 Questions for Jury
268k821(6) Construction or condition of
sidewalk, footway, or crosswalk
Affirmed.
Trivial nature of defect in sidewalk may loom
larger than another element, such that not
every injury allegedly caused by elevated brick
or slab need be submitted to jury.
West Headnotes (3)
[1]
Municipal Corporations
Depressions and inequalities in surface
Municipal Corporations
Construction or condition of sidewalk,
footway, or crosswalk
268 Municipal Corporations
268XII Torts
268XII(C) Defects or Obstructions in Streets
and Other Public Ways
268k765 Nature of Defects
268k768 Construction or Condition of
Sidewalk, Footway, or Crosswalk
268k768(3) Depressions and inequalities in
surface
268 Municipal Corporations
268XII Torts
268XII(C) Defects or Obstructions in Streets
and Other Public Ways
268k810 Actions for Injuries
Municipal Corporations
Construction or condition of sidewalk,
footway, or crosswalk
86 Cases that cite this headnote
[3]
Counties
Condition and use of public buildings,
places, and property
104 Counties
104VII Torts
104k143 Condition and use of public buildings,
places, and property
Pedestrian’s injuries sustained in trip and
fall over half inch raise of slab outside
county building during daylight hours were
not actionable, given width, depth, elevation,
irregularity, and appearance of defect along
with time, place, and circumstance of injury.
204 Cases that cite this headnote
© 2019 Thomson Reuters. No claim to original U.S. Government Works.
1
Trincere v. County of Suffolk, 90 N.Y.2d 976 (1997)
688 N.E.2d 489, 665 N.Y.S.2d 615, 1997 N.Y. Slip Op. 08600
Attorneys and Law Firms
***616 *976 **490 Greshin, Ziegler & Pruzansky,
Smithtown (Vincent M. Amicizia and Joel J. Ziegler, of
counsel), for appellant.
Robert J. Cimino, County Attorney of Suffolk County,
Hauppauge (Robert H. Cabble and W. Scott Schneider,
of counsel), for respondent.
Schneider, Kleinick, Weitz, Damashek & Shoot, New
York City (Brian J. Shoot, Robert E. Lahm and Harry
Steinbert, of *977 counsel), for New York State Trial
Lawyers Association, amicus curiae.
Paul A. Crotty, Corporation Counsel of New Youk City
(Dristen M. Helmers and Alan G. Krams, of counsel), for
City of New York, amicus curiae.
Frank V. Kelly, New York City, Andrew Zajac,
John McDonough, Elizabeth Fitzpatrick and Carol R.
Finocchio, for Defense Association of New York, amicus
curiae.
OPINION OF THE COURT
MEMORANDUM.
The order of the Appellate Division should be affirmed,
with costs.
In the daylight hours of March 1991, plaintiff walked to
the north side entrance of the H. Lee Dennison Building
in Hauppauge, New York. She ascended the steps from
the parking lot to a plaza area where she stumbled and
fell over a cement slab that was elevated at an angle “a
little over a half-inch above the surrounding paving slabs.”
The issue on this appeal is whether a defect consisting of
a one-half inch elevation of a cement slab in the plaza
area of a municipal building is nonactionable as a matter
of law. We hold there is no “minimal dimension test” or
per se rule that a defect must be of a certain minimum
height or depth in order to be actionable. However, we
conclude that the Appellate Division properly dismisssed
End of Document
plaintiff’s claim after its examination of all the facts and
circumstances presented, including the dimension of the
defect at issue.
[1] [2] [3] There is no rule that municipal 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 …” (Loughran v. City of New York, 298 N.Y. 320,
321, 83 N.E.2d 136; Wilson v. Jaybro Realty & Dev. Co.,
289 N.Y. 410, 412, 46 N.E.2d 497). Instead, whether a
dangerous or defective condition exists on the property of
another so as to create liability “ ‘depends on the peculiar
facts and circumstances of each case’ and is generally
a question of fact for the jury” (Guerrieri v. Summa,
193 A.D.2d 647, 598 N.Y.S.2d 4 [citations omitted] ).
Of course, in some instances, the trivial nature of the
defect may loom larger than another element. Not every
injury allegedly caused by an elevated brick or slab need
be submitted to a jury (see, e.g., Hecht v. City of New
York, 60 N.Y.2d 57, 61, 467 N.Y.S.2d 187, 454 N.E.2d
527 [claim involving trivial gap between two flagstones
of the sidewalk was properly dismissed] ). However, a
mechanistic disposition of *978 a case based exclusively
on the dimension of the sidewalk defect is unacceptable.
After examination of the facts presented, including the
width, depth, elevation, irregularity and appearance of
the defect along with the “time, place and circumstance”
of the injury (Caldwell v. Village of Island Park, 304
N.Y. 268, 274, 107 N.E.2d 441), the court correctly
concluded that no issue of fact was presented. In view of
this disposition, we need not reach appellant’s remaining
arguments.
KAYE, C.J., and TITONE, BELLACOSA, SMITH,
LEVINE, CIPARICK and WESLEY, JJ., concur.
Order affirmed, with costs, in a memorandum.
All Citations
90 N.Y.2d 976, 688 N.E.2d 489, 665 N.Y.S.2d 615, 1997
N.Y. Slip Op. 08600
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