The law is well-settled that property owners are under an obligation to maintain their premises in a reasonably safe condition for other persons (e.g., Henry v. Hamilton Equities, Inc., 34 N.Y.3d 136 [2019]). If a plaintiff is injured by a hazardous condition, liability may be imposed if the property owner created the defect or, alternatively, had actual or constructive notice of it (Di Sanza v. City of New York, 11 N.Y.3d 766 [2008]). But those considerations are overridden if the defect qualifies as a trivial, non-actionable one (Hutchinson v. Sheridan Hill House Corp., 26 N.Y.3d 66 [2015]).

How do we define triviality? 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, and therefore, determining liability issues based exclusively on the dimensions of a defect in not permissible (Trincere v. County of Suffolk, 90 N.Y.2d 976 [1997]). While the size of a defect is of course very important, courts must more broadly consider all of the specific facts and circumstances of the case (Hutchinson, 26 N.Y.3d at 77). Relevant facts and circumstances include the width, depth, elevation, irregularity, and appearance of the defect, along with the time, place and circumstance of the injury (Trincere, 90 N.Y.2d at 978). A defect at a highly-trafficked sidewalk in a poorly-lit location may lend itself to liability more than the same defect at an obscure location in daylight.

When relevant, the triviality of an alleged defect is a defense of the property owner. Photographs which fairly and accurately represent an accident site may be used to help establish that a defect is trivial and not actionable (Hutchinson, 26 N.Y.3d at 82-83). In fact, photographs are routinely submitted by parties in trip and fall actions to demonstrate the nature and dimensions of the alleged defect and its other surrounding facts and circumstances. Objective measurements of alleged defects also are often provided (e.g., Luo v. Croyden Apts., Inc., 219 A.D.3d 1364 [N.Y. App. Div., 2d Dep’t 2023] [measurement by professional engineer of sidewalk height differential]).

May photographs alone be sufficient evidence to establish a property owner’s triviality defense, without any objective measurements of the alleged hazard? This question was addressed in Snyder v. AFCO Avports Management, LLC, 232 A.D.3d 209 (N.Y. App. Div., 2d Dep’t 2024). The case involved a plaintiff’s trip and fall upon a misleveled concrete slab of a sidewalk leading to the terminal of Stewart International Airport in Orange County. The accident occurred during daylight in clear weather. The defendants were the Port Authority of New York and New Jersey, which held a commercial lease for the airport, and AFCO Avports Management, LLC, which managed relevant portions of property. At depositions, neither the plaintiff nor her husband, who was present during How do we define triviality? 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, and therefore, determining liability issues based exclusively on the dimensions of a defect in not permissible (Trincere v. County of Suffolk, 90 N.Y.2d 976 [1997]). WESTCHESTER LAWYER | MAY 2025 | 7 the accident, were asked to estimate or describe the height differential of the sidewalk slabs. Two incident reports --- one by an airport employee and one by a New York Trooper called to the scene, likewise provided no measurement of the trip hazard. The sidewalk slabs were replaced mere days after the occurrence, so no investigator or professional engineer could obtain an objective measurement of the defect for litigation purposes. The only evidence of the dimensions of the defect and other surrounding facts and circumstances were eleven photographs taken by the plaintiffs themselves shortly after the occurrence itself, from various distances, angles, and elevations.

The defendants moved for summary judgment under Rule 3212 of the New York Civil Practice Law and Rules, arguing that the photographs established the triviality of the height differential between the concrete sidewalk slabs as a matter of law. The defendants also proffered the opinion of a human factors expert that the elevation differential was visible and apparent from ten steps away, but the expert’s opinion was ultimately found to be conclusory, speculative, and therefore inadmissible. In opposition, there was no affidavit from the plaintiff or her husband. Instead, the motion was opposed on the ground that summary judgment could not as a matter of law be granted to a property owner absent some objective measurement of the hazard, which was entirely missing here.

The Appellate Division surveyed the relevant case law and determined that as a general proposition, property owners may establish their prima facie entitlement to summary judgment on triviality without submitting objective measurements of a defect’s dimensions (Snyder, 232 A.D.3d at 215). But, the decision holds, a defendant’s triviality defense is much harder to establish without objective measurement evidence. Where photographs are the sole evidence of the defect, their depictions must be such that specific inferences can be drawn of a defect’s dimensions. That may occur when the defect is “near other objects of known or standard size that are present, such as a coin, a shoe, a baseball, a soda can, or other objects of uniform size (Id., at 216).

In the end, the case illustrates the difficulty property owners face in establishing the trivial defect defense based on photographs alone. Generally, the triviality of defects raises questions of fact for a jury, unless the defense can be established as a matter of law (Snyder, 232 A.D.3d at 212-13). The photographs in Snyder depicted various objects in the general vicinity of the sidewalk slabs, including a fence and cars in the distance, a law enforcement officer standing nearby, the plaintiff lying on the sidewalk, and a piece of luggage closer to the site of the fall. None of those objects or people enabled an informed inferable measurement of the height differential of the sidewalk slabs. A standard orange construction cone sat atop the higher concrete slab with one half of its bottom extending over the height differential at the adjoining slab, but a shadow where the slabs met prohibited an informed inferable measurement of the differential in relation to the size of the cone. Summary judgment therefore needed to be denied to the defendants for their failure to meet their prima facie burden of establishing the triviality of the defect as a matter of law (Id., at 217; see also, Rubin v. Sivan Merrick, LLC, 235 A.D.3d 789 [N.Y. App. Div., 2d Dep’t 2025]).

It is said that a picture paints a thousand words. But in the detail-orientated business of litigation, not always.

Hon. Mark C. Dillon is a Justice of the Appellate Division, Second Department, an Adjunct Professor of New York Practice at Fordham Law School, and a contributing author of CPLR Practice Commentaries in McKinney’s.