Figueroa v. Haven Plaza Housing Development Fund Co.

247 A.D.2d 210, 668 N.Y.S.2d 203, 1998 N.Y. App. Div. LEXIS 786

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: February 3, 1998
• Status: Published

Opinion

Order, Supreme Court, New York County (Sheila Abdus-Salaam, J.), entered on or about January 6, 1997, which granted defendants’ motion for summary judgment dismissing the complaint, unanimously affirmed, without costs.

In this action for damages arising out of a trip and fall over a depression in a walkway, summary judgment was properly granted. The shallow, gradual character of the depression, measured by plaintiff to be an inch and one-half is readily discernible in plaintiff’s photographs. Viewing the affidavits and exhibits in the light most favorable to plaintiff, we conclude that the court properly considered all the relevant circumstances (see, Trincere v County of Suffolk, 90 NY2d 976) and determined that the alleged defect was trivial, and possessed none of the characteristics of a trap or snare.

The court properly disregarded as conclusory that part of plaintiff’s expert’s opinion that was based on observations of the walkway made two years after the accident (see, Drillings v Beth Israel Med. Ctr., 200 AD2d 381). Although the expert stated that his conclusions were based on his on site inspection and the photographs taken days following the accident, he never compared his observations to the photographs or stated that the condition of the depression in 1995 was the same as it was at the time of the accident in October 1993.

Concur — Sullivan, J. P., Wallach, Williams and Andrias, JJ.