Trincerev.County of Suffolk

Court of Appeals of the State of New YorkOct 21, 1997
90 N.Y.2d 976 (N.Y. 1997)
90 N.Y.2d 976688 N.E.2d 489665 N.Y.S.2d 615

Argued September 11, 1997

Decided October 21, 1997

APPEAL from an order of the Appellate Division of the Supreme Court in the Second Judicial Department, entered October 7, 1996, which, with two Justices dissenting, affirmed a judgment of the Supreme Court (Marquette L. Floyd, J.), entered in Suffolk County, dismissing the complaint after granting a motion by defendant at close of evidence for judgment as a matter of law.

Trincere v County of Suffolk, 232 A.D.2d 400, affirmed.

Greshin, Ziegler Pruzansky, Smithtown ( Vincent M. Amicizia and Joel J. Ziegler of counsel), for appellant.

Robert J. Cimino, County Attorney of Suffolk County, Hauppauge ( Robert H. Cabble and W. Scott Schneider of counsel), for respondent.

Schneider, Kleinick, Weitz, Damashek Shoot, New York City ( Brian J. Shoot, Robert E. Lahm and Harry Steinberg of counsel), for New York State Trial Lawyers Association, amicus curiae. Paul A. Crotty, Corporation Counsel of New York City ( Kristin M. Helmers and Alan G. Krams of counsel), for City of New York, amicus curiae. Frank V. Kelly, New York City, Andrew Zajac, John McDonough, Elizabeth Fitzpatrick and Carol R. Finocchio for Defense Association of New York, amicus curiae.


MEMORANDUM.

The order of the Appellate Division should be affirmed, with costs.

In the daylight hours of March 1991, plaintiff walked to the north side entrance of the H. Lee Dennison Building in Hauppauge, New York. She ascended the steps from the parking lot to a plaza area where she stumbled and fell over a cement slab that was elevated at an angle "a little over a half-inch above the surrounding paving slabs." The issue on this appeal is whether a defect consisting of a one-half inch elevation of a cement slab in the plaza area of a municipal building is nonactionable as a matter of law. We hold 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. However, we conclude that the Appellate Division properly dismissed plaintiff's claim after its examination of all the facts and circumstances presented, including the dimension of the defect at issue.

There is no rule that municipal liability, in a case involving minor defects in the pavement, "turns upon whether the hole or depression, causing the pedestrian to fall, is four inches — or any other number of inches — in depth" ( Loughran v City of New York, 298 N.Y. 320, 321-322; Wilson v Jaybro Realty Dev. Co., 289 N.Y. 410, 412). Instead, whether 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" ( Guerrieri v Summa, 193 A.D.2d 647 [citations omitted]). Of course, in some instances, the trivial nature of the defect may loom larger than another element. Not every injury allegedly caused by an elevated brick or slab need be submitted to a jury ( see, e.g., Hecht v City of New York, 60 N.Y.2d 57, 61 [claim involving trivial gap between two flagstones of the sidewalk was properly dismissed]). However, a mechanistic disposition of a case based exclusively on the dimension of the sidewalk defect is unacceptable. After examination 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 ( Caldwell v Village of Is. Park, 304 N.Y. 268, 274), the court correctly concluded that no issue of fact was presented. In view of this disposition, we need not reach appellant's remaining arguments.

Chief Judge KAYE and Judges TITONE, BELLACOSA, SMITH, LEVINE, CIPARICK and WESLEY concur.

Order affirmed, with costs, in a memorandum.