| Davidow v CSC Holdings, Inc. |
| 2017 NY Slip Op 08655 [156 AD3d 682] |
| December 13, 2017 |
| Appellate Division, Second Department |
[*1]
| Carla Davidow, Appellant, v CSC Holdings, Inc.,Respondent, et al., Defendants. |
Dell & Dean, PLLC (Mischel & Horn, P.C., New York, NY [Scott T. Horn andNaomi M. Taub], of counsel), for appellant.
William J. Fitzpatrick, Hauppauge, NY, for respondent.
In an action to recover damages for personal injuries, the plaintiff appeals from a judgment ofthe Supreme Court, Suffolk County (Tarantino, Jr., J.), entered June 30, 2016, which, upon a juryverdict, is in favor of the defendant CSC Holdings, Inc., and against her, in effect, dismissing thecomplaint insofar as asserted against that defendant.
Ordered that the judgment is reversed, on the law, with costs, the complaint is reinstatedinsofar as asserted against the defendant CSC Holdings, Inc., and the matter is remitted to theSupreme Court, Suffolk County, for a new trial.
The plaintiff commenced this action to recover damages for injuries she allegedly sustainedin a trip and fall on an uneven sidewalk condition on premises possessed by the defendant CSCHoldings, Inc. (hereinafter CSC). The case proceeded to a trial against CSC, at which theplaintiff attempted to introduce into evidence photographs of the area where she fell, but theSupreme Court refused to admit them into evidence on the ground that the plaintiff did not lay aproper foundation for their admission. The jury ultimately returned a verdict in favor of CSC, andthe plaintiff appeals from the ensuing judgment.
In order to admit the photographs proffered at trial into evidence, the plaintiff was required toauthenticate them by laying a proper foundation, which generally requires proof that thephotographs were taken close in time to the accident and fairly and accurately represent theconditions as they existed on the date of the accident (see Saporito v City of New York,14 NY2d 474, 476 [1964]). Contrary to the determination of the Supreme Court, the plaintiffproperly authenticated the photographs by testifying that she took them a few days after theaccident, and that they fairly and accurately depicted the area where she fell at the time of heraccident. Thus, the court erred in refusing to admit them into evidence (see Alcantara v New York City Tr.Auth., 140 AD3d 808, 809 [2016]; Villaurel v City of New York, 59 AD3d 709, 711 [2009];Atkins v Francesca Realty Assoc., 238 AD2d 457 [1997]; Davis v County ofNassau, 166 AD2d 498, 499 [1990]; Ferlito v Great S. Bay Assoc., 140 AD2d 408[1988]). Contrary to the contention of CSC, this error was not harmless, since the photographswere illustrative of the plaintiff's trial testimony and were highly relevant to the issues ofconstructive notice and trivial defect that were raised at trial (see generally Pitt v New York City Tr. Auth., 146 AD3d 826, 828[2017]; Alcantara v New York City Tr. Auth., 140 AD3d at 809; Bolloli v Waldbaum,Inc., [*2]71 AD3d 618, 620 [2010]; DeGruccio v 863 Jericho TurnpikeCorp., 1 AD3d 472, 473 [2003]; Ferlito v Great S. Bay Assoc., 140 AD2d at409). Accordingly, a new trial must be held.
In view of the foregoing, we do not reach the plaintiff's remaining contention. Mastro, J.P.,Chambers, LaSalle and Brathwaite Nelson, JJ., concur.