Trincere v. County of Suffolk

• Decision Date: 21 October 1997
• Citation: 90 N.Y.2d 976,665 N.Y.S.2d 615,688 N.E.2d 489
• Parties: , 688 N.E.2d 489, 1997 N.Y. Slip Op. 8600 Esther TRINCERE, Appellant, v. COUNTY OF SUFFOLK, Respondent.
• Court: New York Court of Appeals Court of Appeals

Page 615

665 N.Y.S.2d 615

90 N.Y.2d 976, 688 N.E.2d 489, 1997

N.Y. Slip Op. 8600

Esther TRINCERE, Appellant, v. COUNTY OF SUFFOLK, Respondent.

Court of Appeals of New York.

oct. 21, 1997.

Greshin, Ziegler & Pruzansky, Smithtown (Vincent M. Amicizia and Joel J. Ziegler, of counsel), for appellant.

Robert J. Cimino, County Attorney of Suffolk County, Hauppauge (Robert H. Cabble and W. Scott Schneider, of counsel), for respondent.

Schneider, Kleinick, Weitz, Damashek & Shoot, New York City (Brian J. Shoot, Robert E. Lahm and Harry Steinbert, of counsel), for New York State Trial Lawyers Association, amicus curiae.

Paul A. Crotty, Corporation Counsel of New Youk City (Dristen M. Helmers and Alan G. Krams, of counsel), for City of New York, amicus curiae.

Frank V. Kelly, New York City, Andrew Zajac, John McDonough, Elizabeth Fitzpatrick and Carol R. Finocchio, for Defense Association of New York, amicus curiae.

OPINION OF THE COURT MEMORANDUM.

The order of the Appellate Division should be affirmed, with costs.

In the daylight hours of March 1991, plaintiff walked to the north side entrance of the H. Lee Dennison Building in Hauppauge, New York. She ascended the steps from the parking lot to a plaza area where she stumbled and fell over a cement slab that was elevated at an angle "a little over a half-inch above the surrounding paving slabs." The issue on this appeal is whether a defect consisting of a one-half inch elevation of a cement slab in the plaza area of a municipal building is nonactionable as a matter of law. We hold there is no "minimal dimension test" or per se rule that a defect must be of a certain minimum height or depth in order to be actionable. However, we conclude that the Appellate Division properly dismisssed plaintiff's claim after its examination of all the facts and circumstances presented, including the dimension of the defect at issue.

There is no rule that municipal liability, in a case involving minor defects in the pavement, "turns upon whether the hole or depression, causing the pedestrian to fall, is four inches--or any other number of inches--in depth ..." (Loughran v. City of New York, 298 N.Y. 320, 321, 83 N.E.2d 136; Wilson v. Jaybro Realty & Dev. Co., 289 N.Y. 410, 412, 46 N.E.2d 497). Instead, whether a dangerous or defective condition exists on the property of another so as to create liability " 'depends on the peculiar facts and circumstances of each case' and is generally a question of fact for the jury" (...