Generally, the issue of 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 to decide. However, injuries resulting from trivial defects are not actionable and may be decided as a matter of law. 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 of the case, the defect is physically insignificant and that the characteristics of the defect or the surrounding circumstances do not increase the risks it poses. On that showing, the burden shift to the plaintiff to establish an issue of fact so as to survive dismissal. In determining whether a defect is trivial, the court must examine all of the facts presented, including the defect's width, depth, elevation, irregularity, and appearance, along with the time, place, and circumstance of the injury. Photographs which fairly and accurately represent the accident site may be used to establish that a defect is trivial and, therefore, not actionable.
Balbo v. Greenfield's Mkt. of Bethpage, LLC, NY Slip Op 02860 (2d Dep't May 31, 2023)
