Mystery Photos Defeat Summary Judgment (NY)

To sustain a claim for a fall on an allegedly raised sidewalk, the plaintiff must show that the defendant owner had at least constructive notice of the condition.  However, in a recent case, beyond his testimony of the condition, the plaintiff had nothing more to establish the existence of the condition other than photos of unknown origin.  Without more substantial proof, the defendant filed for summary judgment.

In Molinari v. 167 Housing Corpthe plaintiff  testified as to the location and cause of his fall based on photos that he could not authenticate as to identity of the photographer or date taken. Nevertheless, he testified that the photos accurately depicted the condition of the sidewalk at the time of the accident.

 The First Department affirmed denial of the defendant’s summary judgment motion finding that his testimony that the photos fairly and accurately depicted the condition at the time of the accident was sufficient despite the lack of foundation as to who took the photos or when. Moreover, the Court opined that the condition depicted raised an issue of fact as to whether the defendants had constructive notice of the defect.

Special thanks to Georgia Stagias for her contribution.  For more information, contact Denise Fontana Ricci at dricci@wcmlaw.com.