140 A.D.2d 408 | N.Y. App. Div. | 1988
The plaintiff allegedly injured his foot when it made contact with a broken portion of the curb at the shopping center owned by the defendant. He returned to the scene several days later and inspected a gouge in the curb. He testified that its sides and ends were not sharp. Approximately 2 to 3 weeks following the accident, he returned once again and photographs were taken in his presence. The plaintiff introduced the photographs into evidence at the trial.
To constitute constructive notice, a defect must be visible and apparent and it must exist for a sufficient length of time prior to the accident to permit a defendant or his employee to discover and remedy it (Gordon v American Museum of Natural History, 67 NY2d 836). Photographs may be used to prove
A plaintiff is entitled to the benefits of the most favorable inferences which can reasonably be drawn from the evidence (Nicholas v Reason, 84 AD2d 915). It is only when there is a complete lack of any evidence that a defendant is entitled to dismissal of the complaint (Lander v Nacri, 130 AD2d 628).
In view of the above disposition, we need not consider the plaintiffs remaining contentions. Brown, J. P., Weinstein, Spatt and Balletta, JJ., concur.