This is a sidewalk trip-and-fall case, in which the plaintiff alleges that she fell on a raised sidewalk flag on the sidewalk abutting the property of the defendants Gottesman and Hoffman. They move for summary judgment, and the defendant City cross-moves for the same relief. For the reasons that follow, the motion and cross-motion are granted, and the complaint is dismissed.

The law is well settled that an abutting landowner will not be liable to a pedestrian passing by on a public sidewalk unless the landowner negligently repaired the sidewalk or created the defect in the sidewalk that caused the accident (D'Ambrosia v City of New York, 55 NY2d 454; Belmonte v City of New York, 180 AD2d 617; Kobet v Consolidated Edison Company of New York, 176 AD2d 785; Surowiec v City of New York, 139 AD2d 729), or caused the defect to occur because of some special use (Lopez v Alexander, 251 AD2d 297; Rubenstein v DeGeorgio, 236 AD2d 383), or unless a statute or ordinance obligates the landowner to maintain the sidewalk and expressly places tort liability on the landowner for a failure to do so (Rosales v City of New York, 221 AD2d 329).

Here, the property owners= managing agent submits an affidavit that it made no repairs to the sidewalk, and that the tree adjacent to the alleged defect was not planted by it. There is no other suggestion of a special use, and so there is no grounds for liability against the property owners, regardless of whether or not the defect is regarded as trivial.

As to the defendant City, the defect is trivial in nature, and hence non-actionable, as a matter of law. While a consideration of whether a defect will result in liability turns on the peculiar facts of each case and is generally one for the jury, not every such case requires a jury finding (Trincere v. County of Suffolk, 90 NY2d 976). Summary judgment will be appropriate if, after consideration of all the facts and circumstances, including the width, depth, elevation, irregularity and appearance of the defect along with the time, place and circumstance of the injury, the court concludes that the defect was merely a trivial defect over which a pedestrian might stumble, stub his toes or trip (see, Guerrieri v Summa, 193 AD2d 647; Liebl v Metropolitan Jockey Club, 10 AD2d 1006), that the defect was open and apparent (Burstein v City of New York, 259 A.D.2d 579); that it did not have the characteristics of a trap, snare or nuisance, and that no issue of fact is presented (Trincere v. County of Suffolk, 90 NY2d 976 supra; Palminteri v Massapequa Shopping Associates, ___ AD2d ___; Marinaccio v LeChambord Rest., 246 AD2d 514; Riser v New York City Housing Authority, 260 A.D.2d 564; Maloid v NY State Elec. and Gas Corp., 257 A.D.2d 712). The court may examine, in this context, photographs of the accident scene in order to determine whether a factual issue is presented (see, Marinaccio v LeChambord Rest., 246 AD2d 514, supra; Riser v New York City Housing Authority, 260 A.D.2d 564, supra; Maloid v NY State Elec. and Gas Corp., 257 A.D.2d 712, supra). Here, where the defect is a flag which is raised a mere three-quarters of an inch to an inch, where it occurred on a public sidewalk where such small irregularities are unavoidable, normal, and to be expected by any pedestrian, and where there were no other irregularities which taken together might be said to constitute a trap or snare , the court concludes that no issue of fact is presented.

A short-form order embodying this decision has been signed herewith.

  ________________________

J.S.C.