The Second Department determined Supreme Court should not have granted summary judgment to the defendant in a slip and fall case. Plaintiff fell when she stepped in a depression which was filled with water. Defendant argued the 3/4 inch depression was trivial and Supreme Court agreed. The Second Department explained the “trivial defect” analytical criteria and noted that plaintiff had alleged the area was poorly lit:
“[W]hether 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” … . “Property owners may not be held liable for trivial defects, not constituting a trap or nuisance, over which a pedestrian might merely stumble, stub his or her toes, or trip” … . “[T]here 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” …, and “a mechanistic disposition of a case based exclusively on the dimension of the . . . defect is unacceptable” … . To determine whether a defect is trivial as a matter of law, a court must examine “the facts presented, including the width, depth, elevation, irregularity and appearance of the defect along with the time, place and circumstance’ of the injury” … . “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 condition is obscured or the plaintiff is distracted” … . Tesoriero v Brinckerhoff Park, LLC, 2015 NY Slip Op 01938, 2nd Dept 115 3-11-2015