A property owner will not be held liable for trivial defects not
constituting a trap or nuisance, over which a pedestrian might merely
stumble, stub a toe, or trip. In
determining whether a defect is trivial, the court will consider the width, depth, elevation,
irregularity, and appearance of the defect along with the time, place and
circumstance of the accident.
A defendant seeking dismissal of a complaint on the basis that the
alleged defect is trivial must make a prima facie showing that, under the circumstances, the
defect is physically insignificant, and that
the defect's characteristics or the surrounding circumstances do
not increase the risks it poses. On a sufficient showing, the burden shifts to the
plaintiff to establish an issue of fact.
Cortes v. Taravella Family Trust, NY Slip Op 01301 (2d Dep't February 28, 2018)
Here is the decision.
