The following papers numbered 1 to 8 were read on this motion:

Defendant brings its motion seeking summary judgment in its favor dismissing the complaint in this trip-and-fall action. The following facts are undisputed: plaintiff is a cleaner who works for a non-party cleaning service on defendant's campus. For several years, she was paired with another cleaner, non-party Esperanza Arias. They worked from 3-11 p.m. cleaning campus buildings. Their usual routine was to clean a building called 45 Wrexham, and then to go to clean a building called Kober House. Normally, their supervisor drove them to Kober House, but he was unavailable on the night of the accident, in September 2023. Instead, plaintiff and Arias walked from one building to the next, just after 10 p.m. Instead of walking on a path, they took a shortcut that crossed a street. Plaintiff testified at her deposition that she had walked that way approximately eight times previously.

Inset into the pavement was a white cement "crosswalk." (The "crosswalk" went from the side of a building across the street and dead-ended at a small stone retaining wall. Its function is not apparent from the multiple photos provided to the Court.) There is no dispute that the cement "crosswalk" was not flush with the pavement. It appears to be at least one inch higher than the pavement.^[FN2] According to the photos submitted to the Court, there may be a shadow that falls on the pavement from the "crosswalk." The Court notes that although the accident happened at night, neither side submitted to the Court photos of the area as it existed at nighttime. The photos show that there is one light post on one side of the "crosswalk," but none on the other side.

As plaintiff testified at her deposition, as she was crossing the street, she "stepped out to where the cement and the pavement meet and my left foot buckled and I fell and I landed on my right knee and then my weight came down on my right leg and it was dark, so you couldn't see how uneven the surfaces were." When counsel for defendant asked plaintiff which way she was looking at the time of the accident, she testified that "I was looking to the sides, because there's many small trees in that area and because it's dark, we always look to see for safety to make sure that there's not any people that are hiding in the trees or behind the trees because it's very dark." Although plaintiff testified about how dark it was, she also testified that she never complained about the lighting conditions to anyone. Similarly, Ms. Arias testified at her deposition that while she did not have any problem seeing, she described the lights as being "Very little. Not a lot. . . . It was dark, though. There was not a lot of light."

It has long been settled that a "defendant seeking dismissal of a complaint on the basis that the alleged defect is trivial must make a prima facie showing that the defect is, under the circumstances, physically insignificant and that the characteristics of the defect or the surrounding circumstances do not increase the risks it poses. Only then does the burden shift to the plaintiff to establish an issue of fact." Snyder v. AFCO Avports Mgmt., LLC, 232 AD3d 209, 212, 219 N.Y.S.3d 360, 364 (2d Dept. 2024). Moreover, "even physically small defects are actionable when their surrounding circumstances or intrinsic characteristics make them difficult [*2]for a pedestrian to see or to identify as hazards or difficult to traverse safely on foot." Id. at 213, 219 N.Y.S.3d at 364—65. See also Rubin v. Sivan Merrick, LLC, 235 AD3d 789, 790, 227 N.Y.S.3d 420, 422 (2d Dept. 2025) ("There is no minimal dimension test or per se rule that the condition must be of a certain height or depth in order to be actionable. Instead, in determining whether a defect is trivial as a matter of law, the court must examine all of the facts presented, including the width, depth, elevation, irregularity, and appearance of the defect along with the time, place, and circumstance of the injury."). The Court thus must consider all of the facts surrounding the injury and not just the height differential, as defendant urges.

The basis for defendant's motion is that the condition at issue, a height differential of approximately one inch, is too trivial to constitute a dangerous condition. Defendant argues that this is a "trivial defect[], not constituting a trap or nuisance, over which a pedestrian might merely stumble, stub his or her toes, or trip" and is "physically insignificant." Haber v. CVS Pharmacy, Inc., 217 AD3d 659, 659—60, 190 N.Y.S.3d 148, 150 (2d Dept. 2023) (defect was trivial where "difference in height between the two surfaces was less than one inch, the incident occurred in the daytime hours under clear conditions"). See also Boesch v. Comsewogue Sch. Dist., 195 AD3d 895, 896, 146 N.Y.S.3d 503 (2d Dept. 2021) (motion for summary judgment properly dismissed when accident occurred on a clear day because "the height differential between the two slabs of abutting concrete that constituted the sidewalk was physically insignificant and that the characteristics of the defect or the surrounding circumstances did not increase the risks it posed.").

In the cases that defendant cites, the height differential was less than one inch, and the accidents occurred during the day, in "clear conditions." In this case, however, the height differential was more than one inch and the accident occurred at night. The Court finds that by focusing only on the height differential, defendant has failed to establish its prima facie case.

In fact, plaintiff asserts in her opposition papers that this situation is different from the cases cited by defendant because plaintiff "fell at night in a poorly lit area [sic] desolate and quiet area where she also had to look in the trees in the surrounding area to make sure that nobody was lurking there. The only lighting available was behind her, which cast a shadow on the defective depression."

Although defendant argues that plaintiff cannot rely on this poor lighting "theory" because she failed "to plead this theory of negligence in her complaint or her bill of particulars," and it "is well established in the Second Department, that a plaintiff cannot, for the first time in opposition to a motion for summary judgment, raise a new or materially different theory of recovery against a party from those pleaded in the complaint and the bill of particulars,"^[FN3] this case is distinguishable from the cases in which the "new" theory was not allowed. In all of those [*3]cases, the issue raised in the opposition papers was not in the pleadings, the bills of particular or, significantly, discussed at the depositions. See, e.g., Karanevich-Dono v. Haas, 231 AD3d 576, 577—78, 220 N.Y.S.3d 19, 21 (1st Dept. 2024) ("That theory of liability was improperly raised for the first time in opposition to defendants' summary judgment motion, and it was not pleaded in the complaint and bill of particulars, nor was it raised as an issue in Dr. Haas's deposition.") (emphasis added).

In this case, in contrast, both plaintiff and her co-worker testified at their depositions about how dark it was at the site of the accident. (In discussing the lighting, Ms. Arias testified that there was "Very little. Not a lot. . . . It was dark, though. There was not a lot of light."). Defendant was thus on notice, from the time of the depositions, that its liability was predicated on the allegedly dangerous condition caused by the height differential on a dark night.

The case of Noller v. Peralta, 94 AD3d 833, 833—34, 941 N.Y.S.2d 703, 705 (2d Dept. 2012) is instructive. In that case, although "plaintiffs failed to allege in their complaint the violation of that duty and did not specify it in their bill of particulars," defendants were on notice that an ordinance "would likely be asserted as a basis for liability" because "at a deposition of the Town's Building Inspector, the applicability of the ordinance was raised." See also Sousie v. Lansingburgh Boys and Girls Club Inc., 291 AD2d 619, 620, 738 N.Y.S.2d 396 (3d Dept. 2002) ("Plaintiff . . . clearly testified that it was 'black' at the bottom of the stairs. Indeed, according to plaintiff, had she been able to see the bottom step, she would not have fallen. Plaintiff's daughter . . . similarly averred that 'it was very dark in the area' of the stairs. Additionally, a disinterested witness . . . "averred that as plaintiff 'was near the bottom of the steps, it was very dark because the light was out. It was very hard to see.' Plaintiff's testimony, coupled with these eyewitnesses' averments, created an issue of fact as to whether the stairway was sufficiently illuminated that evening.").

Having considered all of the facts presented to the Court, it is clear that defendant considered only the height of the pavement difference in moving for summary judgment. Defendant entirely failed to take into account "the characteristics of the defect or the surrounding circumstances," which here may have "increase[d] the risks it poses." The Court finds that a jury must decide whether the height differential, in the circumstances at the time of the accident, is a basis for liability.

The foregoing constitutes the decision and order of the Court.