DEPRESSED DRAIN NEAR CONDOMINIUM ENTRANCE WAS A NON-ACTIONABLE TRIVIAL DEFECT.

The Second Department determined that a depressed drain near the entrance to a condominium was a non-actionable trivial defect:

 

“Generally, whether a dangerous or defective condition exists depends on the particular facts of each case, and is properly a question of fact for the jury unless the defect is trivial as a matter of law” … . “[I]njuries resulting from trivial defects, not constituting a trap or nuisance, over which a pedestrian might merely stumble, stub his or her toes, or trip are not actionable” … . In determining whether a defect is trivial, the 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” … .

“[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” … . “[G]ranting summary judgment to a defendant based exclusively on the dimension[s] of the . . . defect is unacceptable'” … . Thus, “a holding of triviality [is] to be based on all the specific facts and circumstances of the case, not size alone” … .

“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 once the defendant meets its burden, will the burden shift to the plaintiff to establish an issue of fact … . Maldonado v 2121 Shore Condominium, 2016 NY Slip Op 02780, 2nd Dept 4-13-16