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DEFENDANTS DID NOT DEMONSTRATE CEMENT PATCH WAS A TRIVIAL DEFECT AS A MATTER OF LAW; NO EVIDENCE OF DIMENSIONS OF DEFECT SUBMITTED.

The Second Department determined defendants did not demonstrate, as a matter of law, that the cement patch over which plaintiff allegedly tripped was a trivial defect. The defendants did not submit evidence of the dimensions of the defect:

“[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” … . Photographs that fairly and accurately represent the accident site may be used to establish that a defect is trivial and not actionable … .

Here, in support of their motion, the defendants submitted, inter alia, the deposition testimony of the plaintiff and photographs which the plaintiff claimed accurately depicted the condition that allegedly caused her to fall. Viewed in the light most favorable to the plaintiff, as the nonmovant … , the evidence submitted by the defendants failed to establish their prima facie entitlement to judgment as a matter of law. No evidence was elicited as to the dimensions of the defect at the time of the accident. In light of the photographs, which depict the irregular nature of the sidewalk, as well as the time, place, and circumstance of the plaintiff’s fall, it cannot be said as a matter of law that the condition at issue was trivial as a matter of law and therefore not actionable … . Mazza v Our Lady of Perpetual Help R.C. Church, 2015 NY Slip Op 09657, 2nd Dept 12-30-15

NEGLIGENCE (CEMENT PATCH WAS NOT TRIVIAL DEFECT AS A MATTER OF LAW)/TRIVIAL DEFECT (SLIP AND FALL, CEMENT PATCH WAS NOT A TRIVIAL DEFENCE AS A MATTER OF LAW)/SLIP AND FALL (CEMENT PATCH WAS NOT TRIVIAL DEFECT AS A MATTER OF LAW)/EVIDENCE (CEMENT PATCH WAS NOT SHOWN TO BE TRIVIAL DEFECT AS A MATTER OF LAW, NO EVIDENCE OF DIMENSIONS OF DEFECT)

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