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PHOTOGRAPHS OF UNEVEN SIDEWALK WHERE PLAINTIFF FELL WERE PROPERLY AUTHENTICATED AND SHOULD NOT HAVE BEEN EXCLUDED, NEW TRIAL ORDERED (SECOND DEPT).

The Second Department, reversing the judgment by jury verdict, determined the photographs taken of the sidewalk where plaintiff fell should not have been excluded from evidence. Plaintiff took the pictures herself a few days after her fall:

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The plaintiff commenced this action to recover damages for injuries she allegedly sustained in a trip and fall on an uneven sidewalk condition on premises possessed by the defendant … (…CSC). The case proceeded to a trial against CSC, at which the plaintiff attempted to introduce into evidence photographs of the area where she fell, but the Supreme Court refused to admit them into evidence on the ground that the plaintiff did not lay a proper foundation for their admission. …

In order to admit the photographs proffered at trial into evidence, the plaintiff was required to authenticate them by laying a proper foundation, which generally requires proof that the photographs were taken close in time to the accident and fairly and accurately represent the conditions as they existed on the date of the accident… . Contrary to the determination of the Supreme Court, the plaintiff properly authenticated the photographs by testifying that she took them a few days after the accident, and that they fairly and accurately depicted the area where she fell at the time of her accident. … [T]his error was not harmless, since the photographs were illustrative of the plaintiff’s trial testimony and were highly relevant to the issues of constructive notice and trivial defect that were raised at trial … . Davidow v CSC Holdings, Inc., 2017 NY Slip Op 08655, Second Dept 12-13-17

 

NEGLIGENCE (EVIDENCE, SLIP AND FALL, PHOTOGRAPHS OF UNEVEN SIDEWALK WHERE PLAINTIFF FELL WERE PROPERLY AUTHENTICATED AND SHOULD NOT HAVE BEEN EXCLUDED, NEW TRIAL ORDERED (SECOND DEPT))/SLIP AND FALL (EVIDENCE, PHOTOGRAPHS OF UNEVEN SIDEWALK WHERE PLAINTIFF FELL WERE PROPERLY AUTHENTICATED AND SHOULD NOT HAVE BEEN EXCLUDED, NEW TRIAL ORDERED (SECOND DEPT))/SIDEWALKS (SLIP AND FALL, EVIDENCE, PHOTOGRAPHS OF UNEVEN SIDEWALK WHERE PLAINTIFF FELL WERE PROPERLY AUTHENTICATED AND SHOULD NOT HAVE BEEN EXCLUDED, NEW TRIAL ORDERED (SECOND DEPT))/PHOTOGRAPHS (EVIDENCE, SLIP AND FALL, PHOTOGRAPHS OF UNEVEN SIDEWALK WHERE PLAINTIFF FELL WERE PROPERLY AUTHENTICATED AND SHOULD NOT HAVE BEEN EXCLUDED, NEW TRIAL ORDERED (SECOND DEPT))

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