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IN THIS TRAFFIC-ACCIDENT DAMAGES TRIAL, THE DEFENDANT OFFERED PHOTOGRAPHS OF PLAINTIFF’S DAMAGED VEHICLE AND PLAINTIFF’S EMPLOYMENT RECORDS WHICH WERE ADMITTED INTO EVIDENCE WITHOUT PROPER FOUNDATIONS; NEW TRIAL ORDERED (SECOND DEPT).

The Second Department, reversing the judgment and ordering a new damages trial in this traffic accident case, determined the photographs of plaintiff’s damaged vehicle and the plaintiff’s employment records, offered in evidence by the defendant, should not have been admitted because defendant did not lay a sufficient foundation:

The proponent must lay a proper foundation for the admission of photographs into evidence, “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” … . Here, the plaintiff, who was the sole witness who testified about the photographs, stated that they did not fairly and accurately depict the condition of her vehicle after the accident and that she did not know when the photographs were taken. Thus, the defendant failed to lay a proper foundation for admission of the photographs, and the Supreme Court erred in admitting them into evidence.

“[D]ocuments obtained by subpoena cannot be admitted into evidence without a proper evidentiary foundation” … . Furthermore, “[a] proper foundation for the admission of a business record must be provided by someone with personal knowledge of the maker’s business practices and procedures” … . Here, the defendant failed to lay a proper foundation for the admission of the plaintiff’s employment documents, which had been obtained via subpoena, since no witness testified to having personal knowledge of the business practices and procedures of the plaintiff’s former employer. Accordingly, the Supreme Court erred in admitting the employment documents into evidence.

Postaccident photographs of a vehicle are “relevant to show the force of an impact, and [would] therefore ‘help[ ] in determining the nature or extent of injuries and thus relate[ ] to the question of damages'” … . Additionally, the employment documents were relevant to both the plaintiff’s credibility and her prior injury history. Since the improperly admitted photographs and employment documents related to the extent of the plaintiff’s injuries and her credibility, these errors were not harmless … . Powell v Burg, 2025 NY Slip Op 03348, Second Dept 6-4-25

Practice Point: If a party offers photographs and documents which are admitted in evidence without proper foundations, and the evidence is detrimental to the other party, a new trial may be ordered on appeal.

 

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