RIVERA v. NEW YORK CITY TRANSIT AUTHORITY (2005)

In an action to recover damages for personal injuries, the defendant appeals, as limited by its brief, from so much of an interlocutory judgment of the Supreme Court, Kings County (Knipel, J.), entered November 10, 2003, as, upon a jury verdict finding it 80% at fault and the plaintiff 20% at fault in the happening of the accident, is in favor of the plaintiff and against it on the issue of liability.

ORDERED that the interlocutory judgment is reversed insofar as appealed from, on the law, and the matter is remitted to the Supreme Court, Kings County, for a new trial on the issue of liability, with costs to abide the event.

 The defendant contends that the trial court committed reversible error by admitting photographs which allegedly depicted the defective condition of the subway steps at the time of the plaintiff's accident.   We agree.  “Photographs may be used to prove constructive notice of an alleged defect shown in the photographs if they are taken reasonably close to the time of the accident and there is testimony that the condition at the time of the accident was substantially as shown in the photographs” (Ferlito v. Great S. Bay Assoc., 140 A.D.2d 408, 528 N.Y.S.2d 111;  see Davis v. County of Nassau, 166 A.D.2d 498, 499, 560 N.Y.S.2d 696;  see Lustenring v. 98-100 Realty, 1 A.D.3d 574, 768 N.Y.S.2d 20;  DeGruccio v. 863 Jericho Turnpike Corp., 1 A.D.3d 472, 767 N.Y.S.2d 274;  Anis v. Associated Rest. Mgt. Corp., 202 A.D.2d 459, 609 N.Y.S.2d 51).   Here, the plaintiff failed to offer any proof as to when the photographs were taken, and thus it cannot be concluded that they were taken reasonably close to the time of the accident, which occurred nearly eight years prior to the trial.   Moreover, since the accident took place on a heavily-traveled subway stairway, it cannot be assumed that photographs which may have been taken years later accurately depicted the condition of the steps at the time of the accident.   Under these circumstances, the testimony offered by an accident witness to authenticate the photographs was insufficient to establish that the condition at the time of the plaintiff's fall was substantially as shown in the photographs (see Labella v. Willis Seafood, 296 A.D.2d 382, 744 N.Y.S.2d 504;  Young v. Ai Guo Chen, 294 A.D.2d 430, 742 N.Y.S.2d 341;  Marrione v. Ficano Enters., 277 A.D.2d 291, 715 N.Y.S.2d 747;  Fine Ornaments v. Esplanade Gardens, 248 A.D.2d 287, 670 N.Y.S.2d 91;  Anis v. Associated Rest. Mgt. Corp., supra ).

The defendant's remaining contentions are without merit or need not be reached in light of our determination.