GENNARO v. CORD MEYER DEVELOPMENT COMPANY LLC (2008)

In an action to recover damages for personal injuries, the plaintiff appeals from an order of the Supreme Court, Queens County (Taylor, J.), dated October 26, 2007, which granted the defendant's motion for summary judgment dismissing the complaint.

ORDERED that the order is affirmed, with costs.

The plaintiff commenced this action against the defendant, alleging that a pothole in the defendant's parking lot caused him to fall and sustain personal injuries.   The defendant moved for summary judgment dismissing the complaint, contending that it did not create the alleged defect or have actual or constructive notice of it.   The Supreme Court granted the motion.   We affirm.

The defendant met its initial burden of establishing its entitlement to judgment as a matter of law by submitting evidence sufficient to demonstrate that it did not create the alleged defect or have actual or constructive notice of it (see Gordon v. American Museum of Natural History, 67 N.Y.2d 836, 501 N.Y.S.2d 646, 492 N.E.2d 774).   In opposition, the plaintiff failed to submit evidence sufficient to raise a triable issue of fact (see Alvarez v. Prospect Hosp., 68 N.Y.2d 320, 508 N.Y.S.2d 923, 501 N.E.2d 572).

 Photographs may be used to prove constructive notice if they were taken close in time to the subject accident and if there is testimony that the conditions depicted in the photographs are substantially the same as those that existed on the day of the accident (see Salvia v. Hauppauge Rte. 111 Assoc., 47 A.D.3d 791, 791-792, 849 N.Y.S.2d 630;  DeGruccio v. 863 Jericho Turnpike Corp., 1 A.D.3d 472, 473, 767 N.Y.S.2d 274;  cf. Batton v. Elghanayan, 43 N.Y.2d 898, 899, 403 N.Y.S.2d 717, 374 N.E.2d 611).   Here, the plaintiff failed to establish that the photographs were taken close in time to his accident (see Rios v. New York City Hous. Auth., 48 A.D.3d 661, 662, 852 N.Y.S.2d 283;  Rivera v. New York City Tr. Auth., 22 A.D.3d 554, 555, 802 N.Y.S.2d 247).   In any event, the black and white photocopies of color photographs, which were submitted in opposition to the motion, were of such poor quality as to render them insufficient to raise a triable issue of fact as to whether the defendant had constructive notice of the alleged defect (see Singer v. St. Francis Hosp., 21 A.D.3d 469, 799 N.Y.S.2d 742).