ZALKIN v. CITY OF NEW YORK (2007)

In an action to recover damages for personal injuries, the plaintiff appeals from an order of the Supreme Court, Richmond County (Mega, J.), dated June 13, 2005, which granted the defendant's motion, in effect, for summary judgment dismissing the complaint.

ORDERED that the order is affirmed, with costs.

 Generally, the issue of whether a dangerous or defective condition exists depends on the particular circumstances of each case, and is properly a question of fact for the jury (see Riser v. New York City Hous. Auth., 260 A.D.2d 564, 688 N.Y.S.2d 645;  see also Trincere v. County of Suffolk, 90 N.Y.2d 976, 977, 665 N.Y.S.2d 615, 688 N.E.2d 489;  Corrado v. City of New York, 6 A.D.3d 380, 773 N.Y.S.2d 894).  “However, a property owner may not be held liable in damages for trivial defects, not constituting a trap or nuisance, over which a pedestrian might merely stumble, stub his or her toes, or trip” (Hargrove v. Baltic Estates, 278 A.D.2d 278, 717 N.Y.S.2d 320;  see Hagood v. City of New York, 13 A.D.3d 413, 785 N.Y.S.2d 924).   In determining whether a defect is trivial, a court must examine all 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” (Trincere v. County of Suffolk, supra at 978, 665 N.Y.S.2d 615, 688 N.E.2d 489, quoting Caldwell v. Village of Is. Park, 304 N.Y. 268, 274, 107 N.E.2d 441;  see Murray v. City of New York, 15 A.D.3d 636, 637, 790 N.Y.S.2d 696).   The defendant established its entitlement to judgment as a matter of law by demonstrating that, under the circumstances, the 3/4 of an inch difference in the height elevation between the edge of the concrete slab which had caused the plaintiff to fall and the adjacent concrete slab was too trivial to be actionable (see Morris v. Greenburgh Cent. School Dist. No. 7, 5 A.D.3d 567, 568, 774 N.Y.S.2d 74;  Riser v. New York City Hous. Auth., supra).   In opposition, the plaintiff failed to raise a triable issue of fact.