| Salvia v Hauppauge Rte. 111 Assoc. |
| 2008 NY Slip Op 00479 [47 AD3d 791] |
| January 22, 2008 |
| Appellate Division, Second Department |
| Marianne Salvia, Appellant, v Hauppauge Route 111Associates, Respondent. |
—[*1] Nashak, Frank, Goerlich, & Pape, Lake Success, N.Y. (Michael G. Nashak of counsel), forrespondent.
In an action to recover damages for personal injuries, the plaintiff appeals from an order ofthe Supreme Court, Suffolk County (Doyle, J.), dated October 2, 2006, which granted thedefendant's motion for summary judgment dismissing the complaint.
Ordered that the order is reversed, on the law, with costs, and the defendant's motion forsummary judgment dismissing the complaint is denied.
The plaintiff commenced the instant action to recover damages for injuries she allegedlysustained when she tripped and fell as a result of a large depression in the defendant's parking lot.The Supreme Court granted the defendant's motion for summary judgment dismissing thecomplaint.
To provide a defendant with constructive notice, a defect must be visible and apparent, andmust exist for a sufficient length of time before the accident so as to permit the defendant todiscover and remedy it (see Gordon v American Museum of Natural History, 67 NY2d836, 837 [1986]). Photographs may be used to prove constructive notice of an alleged defect ifthe photographs are taken reasonably close to the time of the accident, and if there is testimonythat the conditions at the time of the accident were similar to the conditions shown in thephotographs (see Batton v Elghanayan, 43 NY2d 898, 899 [1978]; DeGruccio v 863 Jericho Turnpike Corp.,1 AD3d 472, 473 [2003]; DeGiacomo v Westchester County Healthcare Corp.,295 AD2d 395 [2002]).[*2]
The defendant failed to establish its prima facieentitlement to judgment as a matter of law by showing that it did not have constructive notice ofthe alleged depression. In support of its motion for summary judgment, the defendant submittedthe plaintiff's photographs of the subject depression and the plaintiff's deposition testimonyrelating to the admissibility of the photographs. A jury could reasonably infer from theirregularity, width, depth, and appearance of the depression apparent in the photographs that thecondition existed for a sufficient period of time for it to have been discovered and remedied bythe defendant in the exercise of reasonable care (see Taylor v New York City Tr. Auth.,48 NY2d 903, 904 [1979]; Batton v Elghanayan, 43 NY2d at 900; Sotomayor v Pafos Realty, LLC, 43AD3d 905, 906 [2007]; DeGruccio v 863 Jericho Turnpike Corp., 1 AD3d at 473;Leventhal v Forest Hills Gardens Corp., 308 AD2d 434, 435 [2003]). Accordingly, thedefendant's motion for summary judgment dismissing the complaint should have been deniedregardless of the sufficiency of the plaintiff's papers in opposition (see Winegrad v New YorkUniv. Med. Ctr., 64 NY2d 851 [1985]). Mastro, J.P., Santucci, Dillon and Angiolillo, JJ.,concur.