In this personal injury proceeding, defendant moves for summary judgment. Plaintiff opposes the motion.

On October 6, 2003, plaintiff, a 14-year-old student at the time, fell on the gym floor at Troy High School. Plaintiff was walking into the gym from the cafeteria when he tripped and fell. Plaintiff alleges that the wood flooring was warped and was maintained in an unreasonably dangerous and hazardous manner.

Defendant now moves for summary judgment, arguing that the alleged defect is a trivial defect that is not actionable as a matter of law. Defendant argues that the height differential between the wooden floor boards was at most one quarter inch and that the circumstances surrounding this accident mandate a finding that the alleged defect is not actionable as a matter of law. Defendant attaches color photographs of the alleged defective area to its motion papers.

Plaintiff opposes the motion, arguing that the defect was a tripping hazard and was not trivial. Plaintiff submits an affidavit of an engineer who notes his observation that the first floor board after the threshold into the gymnasium from the cafeteria was tilted up approximately one quarter inch, while the next three boards tilt down towards the gym floor. He affirmed that this created a tripping hazard and he also opined that the condition was in violation of the New York State Property Maintenance Code.

Based upon all the facts and circumstances of this case, the Court finds that there are questions of fact as to whether the defect at issue is trivial. The Court has considered the deposition testimony and reviewed the photographs and has weighed heavily the location of the warped floorboards, which is just inside the gym as someone would enter the gym from the cafeteria (see Argenio v Metropolitan Trans. Auth., 277 AD2d 165 [1st Dept 2000]; Tesak v Marine Midland Bank, 254 AD2d 717 [4th Dept 1998]. Plaintiff testified that he opened the right hand door to the gymnasium, pulling the door toward him, and then entered the gymnasium, looking straight ahead, when his right foot hit a warped piece of wood in the wooden floor, causing him to trip and fall. Based upon the photographs, the nature of the defect, and the location of the defect, the Court finds there is a question of fact as to whether the defect is trivial or not. Case law is clear that there is no requirement that there be any particular height differential to determine whether a defect is trivial or not (Trincere v County of Suffolk, 90 NY2d 976 [1997]). Considering all the circumstances and noting that the floorboard in question was in warped condition just inside the door to the gymnasium, the Court finds that there is a question of fact as to whether this defect constitutes a trivial defect.

Accordingly, it is

ORDERED, that defendant's motion for summary judgment is denied. [*2]

This constitutes the Decision and Order of the Court. This Decision and Order is returned to the attorneys for the plaintiff. All other papers are delivered to the Supreme Court Clerk for transmission to the County Clerk. The signing of this Decision and Order shall not constitute entry or filing under CPLR 2220. Counsel is not relieved from the applicable provisions of this rule with regard to filing, entry and Notice of Entry.

Dated:February, 2010

Troy, New York

________________________________________

Henry F. Zwack

Acting Supreme Court Justice