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ALTHOUGH THE PHOTOGRAPH OF THE SIDEWALK DEFECT WAS TAKEN A YEAR BEFORE THE SLIP AND FALL, PLAINTIFF’S TESTIMONY THE PHOTO ACCURATELY AND FAIRLY DEPICTED THE CONDITION OF THE SIDEWALK AT THE TIME OF THE FALL WAS SUFFICIENT (FIRST DEPT). ​

The First Department, reversing Supreme Court’s denial of plaintiff’s summary judgment motion, determined the raised sidewalk flag which caused plaintiff’s slip and fall was sufficiently proven by a photograph taken a year before the accident because plaintiff testified the photo accurately depicted the condition of the sidewalk at the time of the accident:

Plaintiff demonstrated prima facie, through his deposition testimony, photographs and other evidence, that his accident was caused by a hazardous defect in the sidewalk, i.e. a raised sidewalk flag … . Although the photographs were taken over a year prior to plaintiff’s accident and in connection with a different accident at the same location, plaintiff’s testimony that they “fairly and accurately” depicted the condition of the sidewalk at the time of his accident rendered the photographs “probative on the issue of whether the defect was dangerous” … .

The record also demonstrates that the Condo had actual and constructive notice of the sidewalk defect and that the defect existed, unremedied, for a significant period of time prior to plaintiff’s accident. Richard v 1550 Realty LLC, 2024 NY Slip Op 03236, First Dept 6-13-24

Practice Point: Even if the photo of the dangerous condition, here a raised sidewalk flag in a slip and fall case, predates the accident, plaintiff’s testimony the photo fairly and accurately depicts the condition of the sidewalk at the time of slip and fall renders the photo admissible and sufficient.

 

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