The Second Department, reversing Supreme Court in this slip and fall case, determined the defect in the stairway, which was small and was not located in the walking surface of the stairway, was trivial and not actionable:
… [T]he defendant’s expert reviewed the transcript of the plaintiff’s examination pursuant to General Municipal Law § 50-h, together with color photographs identified and marked by the plaintiff during that examination, which depicted the exact location of the alleged defect. The expert also conducted an inspection of the accident location. Based on his review and inspection, the expert averred that the alleged defect was located three inches from the left stairway wall, directly underneath the handrail. Moreover, the height differential between the nosing and the stair measured one-half inch at its greatest depth. Considering the location of the alleged defect, which was not on a walking surface of the stairway … , together with all other relevant surrounding circumstances, the defendant established, prima facie, that the alleged defect was trivial … . Stanley v New York City Hous. Auth., 2018 NY Slip Op 03726, Second Dept 5-23-18
NEGLIGENCE (SLIP AND FALL, STAIRWAYS, SMALL DEFECT THAT WAS UNDER THE HANDRAIL AND NOT IN THE WALKING SURFACE OF THE STAIRWAY WAS TRIVIAL AND NOT ACTIONABLE (SECOND DEPT))/SLIP AND FALL (STAIRWAYS, SMALL DEFECT THAT WAS UNDER THE HANDRAIL AND NOT IN THE WALKING SURFACE OF THE STAIRWAY WAS TRIVIAL AND NOT ACTIONABLE (SECOND DEPT))/STAIRWAYS (SLIP AND FALL, SMALL DEFECT THAT WAS UNDER THE HANDRAIL AND NOT IN THE WALKING SURFACE OF THE STAIRWAY WAS TRIVIAL AND NOT ACTIONABLE (SECOND DEPT))/TRIVIAL DEFECTS (SLIP AND FALL, STAIRWAYS, SMALL DEFECT THAT WAS UNDER THE HANDRAIL AND NOT IN THE WALKING SURFACE OF THE STAIRWAY WAS TRIVIAL AND NOT ACTIONABLE (SECOND DEPT))