PHOTOGRAPH OF SIDEWALK DEFECT RAISED A QUESTION OF FACT ABOUT CONSTRUCTIVE NOTICE IN THIS SLIP AND FALL CASE, DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT SHOULD NOT HAVE BEEN GRANTED (FIRST DEPT).

The First Department, reversing Supreme Court, determined that the long-time existence of the sidewalk defect could be inferred from the photograph. Defendants were therefore not able to show the absence of constructive notice and defendants’ motion for summary judgment in this slip and fall case should not have been granted:

​

Owner defendants failed to make a prima facie showing that they lacked actual or constructive notice of the defect in the sidewalk that allegedly caused plaintiff to trip and fall … . A jury could infer from plaintiff’s photograph of the defective condition that the condition existed for a sufficient length of time for owner defendants to have discovered it and had time to repair it … .

In opposition, plaintiff raised an issue of fact as to whether the defect was actionable and not trivial. A photograph of the sidewalk at the time of plaintiff’s accident showed the condition of the sidewalk to be well-worn, with cracks between the slabs, and the defect shown in close-up appeared to be capable of causing plaintiff to trip and fall … . Flanders v Sedgwick Ave. Assoc., LLC, 2017 NY Slip Op 08718, First Dept 12-14-17

 

NEGLIGENCE (SLIP AND FALL, SIDEWALKS, PHOTOGRAPH OF SIDEWALK DEFECT RAISED A QUESTION OF FACT ABOUT CONSTRUCTIVE NOTICE IN THIS SLIP AND FALL CASE, DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT SHOULD NOT HAVE BEEN GRANTED (FIRST DEPT))/SIDEWALKS (SLIP AND FALL, PHOTOGRAPH OF SIDEWALK DEFECT RAISED A QUESTION OF FACT ABOUT CONSTRUCTIVE NOTICE IN THIS SLIP AND FALL CASE, DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT SHOULD NOT HAVE BEEN GRANTED (FIRST DEPT))/SLIP AND FALL (SIDEWALKS, PHOTOGRAPH OF SIDEWALK DEFECT RAISED A QUESTION OF FACT ABOUT CONSTRUCTIVE NOTICE IN THIS SLIP AND FALL CASE, DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT SHOULD NOT HAVE BEEN GRANTED (FIRST DEPT))