Herrera v. City of New York

—Order, Supreme Court, Bronx County (George Friedman, J.), entered July 24, 1998, which, to the extent appealed from as limited by appellant’s brief, denied defendant Anthony D’Amico & Son’s cross motion for summary judgment, affirmed, without costs. There is no per se rule that a sidewalk defect must be of a certain minimum elevation or width differential in order to be actionable; rather, it depends on the particular facts and circumstances of each case (Trincere v County of Suffolk, 90 NY2d 976). Generally, a sidewalk defect presents an issue of fact for a jury (see, Nin v Bernard, 257 AD2d 417; Tesak v Marine Midland Bank, 254 AD2d 717), unless, as the Court of Appeals noted in Trincere, the defect is so trivial as to warrant disposition on summary judgment. But even a trivial defect can sometimes have the characteristics of a snare or a trap (see, e.g., Rivera v 2300 X-tra Wholesalers, 239 AD2d 268). In her candid deposition testimony, plaintiff was unable to state, of a certainty, what had caused her to fall, except that when she looked back, after falling, she noticed the sidewalk at that spot was “unlevel.” The photographic record here reveals the possibility that between the adjoining sidewalk and the section newly installed by D’Amico & Son, there was not only an elevation differential of three-quarters to one inch (downward, in the direction plaintiff was walking), but also a gap of up to one and a half inches in width. This is a hazard whose existence should be determined and evaluated by a trier of facts. Concur — Sullivan, J. P., Nardelli, Wallach, Andrias and Saxe, JJ.