Defect Properly Found Trivial As a Matter of Law

The Second Department determined Supreme Court properly determined a defect in a metal sidewalk door was trivial as a matter of law.  The court explained the applicable principles:

“[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” … . However, a property owner (and tenants) 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 … . In determining whether a defect is trivial as a matter of law, 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” … . There 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 which fairly and accurately represent the accident site may be used to establish that a defect is trivial and, therefore, not actionable … . Nunez v Morwood Dry Cleaners, 2014 NY Slip Op 02564, 2nd Dept 4-16-14