| Anderson v Weinberg |
| 2010 NY Slip Op 01241 [70 AD3d 1438] |
| February 11, 2010 |
| Appellate Division, Fourth Department |
| Rachel Anderson, Respondent, v Neil Weinberg et al.,Appellants. |
—[*1] Lorenzo & Cohen, Buffalo (Amanda A. Gresens of counsel), forplaintiff-respondent.
Appeal from an order of the Supreme Court, Erie County (Diane Y. Devlin, J.), enteredJanuary 28, 2009 in a personal injury action. The order denied defendants' motion for summaryjudgment.
It is hereby ordered that the order so appealed from is unanimously reversed on the lawwithout costs, the motion is granted and the complaint is dismissed.
Memorandum: Plaintiff commenced this action seeking damages for injuries she sustainedwhen she fell after stepping in a snow-covered pothole in a parking lot owned and maintained bydefendants. We agree with defendants that Supreme Court erred in denying their motion forsummary judgment dismissing the complaint. A landowner is liable for a dangerous or defectivecondition on his or her property when the landowner "created the condition or had actual orconstructive notice of it and a reasonable time within which to remedy it" (Backer v CentralParking Sys., 292 AD2d 408, 409 [2002]; see Khamis v CG Foods, Inc., 49 AD3d 606, 607 [2008]; Batista v KFC Natl. Mgt. Co., 21AD3d 917 [2005]). In support of their motion, defendants submitted the depositiontestimony of defendant Neil Weinberg, establishing that defendants did not create the allegedlydangerous condition nor did they have actual or constructive notice of the pothole, and plaintifffailed to raise a triable issue of fact to defeat the motion (see generally Zuckerman v City ofNew York, 49 NY2d 557, 562 [1980]).
In opposing the motion, plaintiff contended that defendants had constructive notice of thepothole, and in support thereof she submitted photographs of the parking lot taken after theaccident. "A photograph may be used to prove constructive notice of an alleged defect shown inthe photograph if it was taken reasonably close to the time of the accident and there is testimonythat the condition at the time of the accident was substantially as shown in the photographs" (Lustenring v 98-100 Realty, 1 AD3d574, 577 [2003], lv dismissed in part and denied in part 2 NY3d 791 [2004]; seeDeGiacomo v Westchester County Healthcare Corp., 295 AD2d 395 [2002]; Truesdell vRite Aid of N.Y., 228 AD2d 922 [1996]). Here, plaintiff established that the photographswere taken at some point during the 5½-week [*2]periodafter the accident, but she failed to establish that they depicted the pothole in question or, indeed,that they reasonably depicted the condition of the parking lot at the time of the accident. Withoutthat authentication, the photographs submitted by plaintiff thus do not constitute the requisiteevidentiary proof in admissible form necessary to raise an issue of fact with respect toconstructive notice (see Young v Ai Guo Chen, 294 AD2d 430, 431 [2002];Truesdell, 228 AD2d at 923).
Finally, we reject plaintiff's contention that defendants contend for the first time on appealthat they lacked actual or constructive notice of the pothole and thus that their contention is notproperly before us (see Ciesinski v Town of Aurora, 202 AD2d 984, 985 [1994]).Defendants sufficiently raised that contention in support of their motion, and plaintiff'sopposition to the motion addressed that contention, identifying it as the crucial issue in the case.In any event, given that defendants could only establish their entitlement to summary judgmentdismissing the complaint by establishing that they neither created the allegedly dangerouscondition nor had actual or constructive notice thereof, we conclude that the notice issue isproperly before us on appeal (see Welchv De Cicco, 9 AD3d 725, 727 [2004]). Present—Scudder, P.J., Smith, Peradotto,Green and Gorski, JJ.