“Not Trivial”
Coker v McMillan, No. 2018-01219, 509034/15, 112 N.Y.S.3d 272, 273–74, 2019 N.Y. Slip Op. 07948, 2019 WL 5778154 (N.Y.A.D. 2 Dept., Nov. 06, 2019) (“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” (Hutchinson v Sheridan Hill House Corp., 26 NY3d 66, 79 [2015]). Here, the evidence attached to the defendants’ moving papers indicated that there was a defect on the nosing of the step that was created by wear to the step and was approximately ½-inch long and extended down ½-inch on the riser. This alleged defective condition was located on a portion of the step where the plaintiff had to stand while twisting her body to close an exterior door. Considering the location of the alleged defect together with all other relevant surrounding circumstances, the defendants failed to establish, prima facie, that the alleged defect was trivial as a matter of law.”).