LEVENTHAL v. FOREST HILLS GARDENS CORP

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Supreme Court, Appellate Division, Second Department, New York.

Leonie LEVENTHAL, Appellant, v. FOREST HILLS GARDENS CORP., Respondent.

Decided: September 08, 2003

FRED T. SANTUCCI, J.P., LEO F. McGINITY, SANDRA L. TOWNES and WILLIAM F. MASTRO, JJ. Goldstein & Goldstein, Brooklyn, N.Y. (Mark I. Goldstein of counsel), for appellant. Guararra & Zaitz, New York, N.Y. (Michael J. Guarrarra of counsel), for respondent.

In an action to recover damages for personal injuries, the plaintiff appeals from a judgment of the Supreme Court, Queens County (Risi, J.), entered August 5, 2002, which, upon a jury verdict, is in favor of the defendant and against her dismissing the complaint.

ORDERED that the judgment is reversed, on the law, and a new trial is granted, with costs to abide the event.

In this action, an important factual question on the issue of the defendant's liability was whether the defendant had constructive notice of an alleged defect that the plaintiff claims caused her fall (see Gordon v. American Museum of Natural History, 67 N.Y.2d 836, 501 N.Y.S.2d 646, 492 N.E.2d 774).   To support her claim, the plaintiff sought to introduce in evidence four photographs of the accident site.   The trial court admitted in evidence one photograph constituting a general overview of the area but excluded from evidence three more specific photographs showing the accident site in greater detail.   This was reversible error.

The plaintiff properly authenticated the three excluded photographs of the accident site as fair and accurate depictions of the area at the time she fell (cf.  People v. Byrnes, 33 N.Y.2d 343, 347, 352 N.Y.S.2d 913, 308 N.E.2d 435).   These photographs may have allowed the jury to infer, based upon the appearance of the defect, that the condition had to have come into being over such a length of time that knowledge thereof should have been acquired by the defendant in the exercise of reasonable care (see Taylor v. New York City Tr. Auth., 48 N.Y.2d 903, 904, 424 N.Y.S.2d 888, 400 N.E.2d 1340).   Under the circumstances, the excluded photographs were not cumulative (cf.  Segnit v. Stuhr Gardens Hous. Dev. Fund Co., 227 A.D.2d 612, 643 N.Y.S.2d 209;  Tannen v. Long Is. R.R., 215 A.D.2d 745, 627 N.Y.S.2d 417).

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