Evans v. Pyramid Co.

Casey, J. Appeal from an order of the Supreme Court (Monserrate, J.), entered July 23, 1991 in Tompkins County, which granted defendants’ motion for summary judgment dismissing the complaint. The only issue raised on this appeal is whether, as a matter of law, the defect which allegedly caused plaintiff Connie Evans (hereinafter plaintiff) to fall is so trivial that it cannot give rise to actionable negligence. The defect consists of an elevation difference between the concrete sidewalk and granite curbing located outside of defendants’ shopping mall. According to evidence in the record the elevation difference is between one half of an inch and one inch, and was apparently caused when ground under the sidewalk settled. The fall occurred as plaintiff was walking from the mall to her car in the mail’s parking lot. We agree with Supreme Court that the question of whether a defect is so trivial that no negligence can arise from either its creation or the failure to repair it cannot be determined merely on the basis of the depth of the particular sidewalk depression or difference in elevation (see, Wilson v Jaybro Realty & Dev. Co., 289 NY 410, 412; Mahota v City of Hudson, 179 AD2d 953, lv denied 79 NY2d 760). Whether a sidewalk was in a reasonably safe condition for pedestrians must be decided on the basis of the facts and circumstances of the particular case (Loughran v City of New York, 298 NY 320, 322). We also agree with Supreme Court that not every noticeable difference in elevation in a sidewalk will create a question of fact (see, Hecht v City of New York, 89 AD2d 524, mod on other grounds 60 NY2d 57). We disagree, however, with Supreme Court’s conclusion that the issue can be decided as a matter of law in this case. Based upon our review of the record, including photographs of the alleged defect and the various affidavits describing the defect, we are of the view that a question of fact has been raised as to whether the defect was so trivial and slight in nature that it could not reasonably have been foreseen that an accident would happen. We note defendants’ reliance on several decisions of this court which concluded that a defect was so trivial that it could not give rise to actionable negligence. In each case, however, we exercised our power to review not only the law, but the facts as well, and reversed judgments in favor of plaintiffs on the law and the facts (Mascaro v State of New York, 46 AD2d 941, affd 38 NY2d 870; Scally v State of New York, 26 AD2d 606, affd 24 NY2d [961] 747; Brannigan v City of Plattsburgh, 3 AD2d 637). Accordingly, they are of little precedential value in determining whether defendants should prevail, as a matter of law, in this case. Weiss, P. J., Yesawich Jr. and Harvey, JJ., concur.