Thomas v. City of New York

301 A.D.2d 387, 753 N.Y.S.2d 468, 2003 N.Y. App. Div. LEXIS 107

Opinion

—Order, Supreme Court, New York County (Marcy Friedman, J.), entered on or about November 7, 2001, which granted defendants’ motions for summary judgment dismissing the complaint, unanimously affirmed, without costs.

A review of plaintiff’s deposition testimony, defendant City’s photographs of the alleged defect, and the City investigator’s report and accompanying affidavit, indicates that the defect alleged to have caused plaintiff’s injury was a metal grating barely raised above the adjacent public sidewalk. Although there is no “minimal dimension test,” in the absence of other contributing factors, the differential in height between the alleged defect and the sidewalk may “loom large” in determining whether the defect poses a hazard of sufficient magnitude to be actionable (see Trincere v County of Suffolk, 90 NY2d 976, 977). Inasmuch as plaintiff, in response to defendant’s prima facie showing of entitlement to judgment as a matter of law, failed to adduce evidence sufficient to raise a triable issue as to whether the alleged defect, although small, nonetheless possessed the characteristics of a trap or snare or was otherwise actionable, the motions for summary judgment dismissing the complaint were properly granted (see Alonso v New York City Tr. Auth., 298 AD2d 311; Zaritsky v City of New York, 248 AD2d 211). Concur — Buckley, J.P., Ellerin, Lerner, Friedman and Marlow, JJ.