Trincere v. County of Suffolk

Appellate Division of the Supreme Court of New York

Trincere v. County of Suffolk

232 A.D.2d 400, 648 N.Y.S.2d 126, 1996 N.Y. App. Div. LEXIS 9897

CourtAppellate Division of the Supreme Court of the State of New York

DecidedOctober 7, 1996

StatusPublished

Cited by6 cases

This text of 232 A.D.2d 400 (Trincere v. County of Suffolk) is published on Counsel Stack Legal Research, covering Appellate Division of the Supreme Court of the State of New York primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Trincere v. County of Suffolk, 232 A.D.2d 400, 648 N.Y.S.2d 126, 1996 N.Y. App. Div. LEXIS 9897 (N.Y. Ct. App. 1996).

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—In an action to recover damages for personal injuries, the plaintiff appeals from a judgment of the Supreme Court, Suffolk County (Floyd, J.), entered August 14, 1995, which, upon granting the defendant’s motion made at the close of evidence for judgment as a matter of law, is in favor of the defendant and against her dismissing the complaint.

Ordered that the judgment is affirmed, with costs.

On March 29, 1991, the plaintiff Esther Trincere tripped and fell on a raised cement slab outside of the entrance of a building owned by the County of Suffolk (hereinafter the County). The plaintiff testified that the slab was raised a little more than half an inch. The record reveals that the County did not have actual notice of a defect. At the close of evidence, the defendant moved, for judgment as a matter of law dismissing the complaint. The Supreme Court dismissed the complaint, finding the defect was slight and trivial, and, therefore, could not constitute a dangerous or defective condition. We agree.

The caselaw reflects a prevailing view to the effect that "differences in elevation of about one inch, without more, * * * [are] nonactionable” (Morales v Riverbay Corp. 226 AD2d 271, citing Hecht v City of New York, 89 AD2d 524, mod on other grounds 60 NY2d 57; see also, Mascaro v State of New York, 46 AD2d 941, affd 38 NY2d 870; Allen v Carr, 28 AD2d 155, affd 22 NY2d 924; see also, Guerrieri v Summa, 193 AD2d 647; Scally v State of New York, 26 AD2d 606, affd 24 NY2d 747; Keirstead v City of New York, 24 AD2d 486, affd 17 NY2d 535; Fleming v Fifth Ave. Coach Lines, 23 AD2d 726; Brannigan v City of Plattsburgh, 3 AD2d 637; cf., Evans v Pyramid Co., 184 AD2d 960). These cases also reflect the reality that municipal entities cannot possibly be expected to be on constructive notice of defects which are so trivial (see, Curci v City of New York, 209 AD2d 574; Hecht v City of New York, supra).

We acknowledge the existence of dicta in prior decisions to the effect that "there is no rule that a defect * * * must be of certain minimum dimensions * * * in order to render one liable” (Giniger v Held, 127 AD2d 562, 562-563; see also, Marcus [401]*401v County of Nassau, 95 AD2d 846). This does not mean, however, that a minimal height differential, considered together with all of the other characteristics of an alleged defect, and together with all the other circumstances presented in a particular case, may never render the issue of constructive notice a question of law, rather than a question of fact. In other words, we do not believe that a question of fact, to be presented to the jury, automatically exists in every case where the plaintiff claims to have tripped on an uneven sidewalk, no matter how exiguous the measurements of the unevenness might be.

The plaintiff’s remaining contentions are meritless. Bracken, J. P., Joy, and Altman, JJ., concur.

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—In an action to recover damages for personal injuries, the plaintiff appeals from a judgment of the Supreme Court, Suffolk County (Floyd, J.), entered August 14, 1995, which, upon granting the defendant’s motion made at the close of evidence for judgment as a matter of law, is in favor of the defendant and against her dismissing the complaint.

Ordered that the judgment is affirmed, with costs.

On March 29, 1991, the plaintiff Esther Trincere tripped and fell on a raised cement slab outside of the entrance of a building owned by the County of Suffolk (hereinafter the County). The plaintiff testified that the slab was raised a little more than half an inch. The record reveals that the County did not have actual notice of a defect. At the close of evidence, the defendant moved, for judgment as a matter of law dismissing the complaint. The Supreme Court dismissed the complaint, finding the defect was slight and trivial, and, therefore, could not constitute a dangerous or defective condition. We agree.

The caselaw reflects a prevailing view to the effect that "differences in elevation of about one inch, without more, * * * [are] nonactionable” (Morales v Riverbay Corp. 226 AD2d 271, citing Hecht v City of New York, 89 AD2d 524, mod on other grounds 60 NY2d 57; see also, Mascaro v State of New York, 46 AD2d 941, affd 38 NY2d 870; Allen v Carr, 28 AD2d 155, affd 22 NY2d 924; see also, Guerrieri v Summa, 193 AD2d 647; Scally v State of New York, 26 AD2d 606, affd 24 NY2d 747; Keirstead v City of New York, 24 AD2d 486, affd 17 NY2d 535; Fleming v Fifth Ave. Coach Lines, 23 AD2d 726; Brannigan v City of Plattsburgh, 3 AD2d 637; cf., Evans v Pyramid Co., 184 AD2d 960). These cases also reflect the reality that municipal entities cannot possibly be expected to be on constructive notice of defects which are so trivial (see, Curci v City of New York, 209 AD2d 574; Hecht v City of New York, supra).

We acknowledge the existence of dicta in prior decisions to the effect that "there is no rule that a defect * * * must be of certain minimum dimensions * * * in order to render one liable” (Giniger v Held, 127 AD2d 562, 562-563; see also, Marcus [401]*401v County of Nassau, 95 AD2d 846). This does not mean, however, that a minimal height differential, considered together with all of the other characteristics of an alleged defect, and together with all the other circumstances presented in a particular case, may never render the issue of constructive notice a question of law, rather than a question of fact. In other words, we do not believe that a question of fact, to be presented to the jury, automatically exists in every case where the plaintiff claims to have tripped on an uneven sidewalk, no matter how exiguous the measurements of the unevenness might be.

The plaintiff’s remaining contentions are meritless. Bracken, J. P., Joy, and Altman, JJ., concur.

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232 A.D.2d 400, 648 N.Y.S.2d 126, 1996 N.Y. App. Div. LEXIS 9897, Counsel Stack Legal Research, https://law.counselstack.com/opinion/trincere-v-county-of-suffolk-nyappdiv-1996.

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