Plaintiff allegedly was injured when she tripped and fell on defendant's driveway. At her deposition, plaintiff testified that the accident occurred on the "edge" of the street, and that the cause of her accident was that "the earth was not good" and the "place is wrong." She later indicated that there was "[l]ike a hole." Plaintiff then circled on a photograph the location where she allegedly fell.

The Second Department dismissed the complaint, in Shohet v. Shaaya, which was decided on September 4, 2007. Upon scrutiny of the photograph as circled by the plaintiff and the other evidence in the record, the court concluded that the alleged defect did not constitute a trap or nuisance and was merely a trivial defect which, as a matter of law, was not actionable.