In Trincere v. County of Suffolk, 90 NY2d 976, 688 N.E.2d 489, 665 N.Y.S.2d 615 (1997), in addressing whether a 1/2 inch elevation difference of a concrete slab in the plaza area of a municipal building was non-actionable as a matter of law, the Court of Appeals held that there is no "minimal dimension test" or "per se rule" that a defect must be of a certain minimum height to be actionable, and that a defendant's liability "depends on the peculiar facts and circumstances of each case and is generally a question of fact" for the trier of facts. Id. at 977.
While noting that "a mechanistic disposition of a case based exclusively on the dimension of the sidewalk defect is unacceptable," the Court affirmed the lower court's decision because no triable issue of fact was presented in that case to preclude the granting of summary judgment in favor of the defendant. Id. at 977-978.
In Trincere v. Suffolk County, a pedestrian fell after tripping over a half inch raise of slab outside a county office building.
In her negligence action, the Supreme Court, in an unreported decision, entered judgment, as matter of law, for the county at the close of evidence; the pedestrian appealed.
The Appellate Division affirmed on the basis that the defect was too trivial to be dangerous and did not justify finding the county liable (see, Trincere v. County of Suffolk, 232 AD2d 400, 648 N.Y.S.2d 126 2nd Dept. 1996).
On appeal, the Court of Appeals held that the defect in the sidewalk was not actionable, concluding that the trial court correctly found that no issue of fact was presented and holding that "in some instances, the trivial nature of a 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, Trincere v. County of Suffolk, supra., at 977.)