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ELEANOR TRUMBOLI, Appellant, v. FIFTH AVENUE PAVING et al., Respondents.

Ordered that the judgment is affirmed, with one bill of costs to the defendants appearing separately and filing separate briefs.

The plaintiff allegedly was injured when she tripped and fell over a depression in a parking lot owned by the defendant Coma Realty Corp. and managed by the defendant Gateway Inn, Inc. The plaintiff had, without incident, traversed the area in question a short while prior to the accident. Furthermore, she acknowledged at her deposition that she could not judge whether or not the depression was deep.

Although the issue of whether a dangerous or defective condition exists on property is generally one for the trier of fact, some defects are trivial and, therefore, not actionable ( see Trincere v County of Suffolk, 90 NY2d 976; Chillemi v National Birchwood Corp., 16 AD3d 612). Here, considering all the facts and circumstances of this case, including a review of the photographs of the purported "dip" or depression in the parking lot where the plaintiff fell, the Supreme Court properly concluded that the defendants made a prima facie showing that the alleged defect upon which the plaintiff tripped, which had no characteristics of a trap or snare, was trivial and, therefore, not actionable ( see Trincere v County of Suffolk, 90 NY2d 976; Chillemi v National Birchwood Corp., 16 AD3d 612). In opposition, the plaintiff failed to raise a triable issue of fact ( see generally Alvarez v Prospect Hosp., 68 NY2d 320; Zuckerman v City of New York, 49 NY2d 557).

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TRUMBOLI v. FIFTH AVENUE PAVING
(Feb 24, 2009)