Opinion
September 28, 1970
In a negligence action to recover damages for personal injuries, defendants appeal from an interlocutory judgment of the Supreme Court, Nassau County, entered May 11, 1970, against them upon a jury verdict after trial on the issues of liability only. Interlocutory judgment reversed, on the law and the facts, and new trial granted in the interests of justice, with costs to abide the event. In our opinion the evidence offered was insufficient to establish a prima facie case of actionable negligence against defendants. No proof was adduced other than by photographs as to the width, height and dimensions of the crack in which plaintiff allegedly caught her heel, or the extent of the elevation of the crack and its physical relationship with respect to the step which it preceded so as to permit a less conjectural conclusion to be arrived at as to the hazardous nature of the crack and as to its being the proximate cause of the accident. Moreover, the photographs themselves were not identified as to when they were taken or as to the angle of elevation from which they were taken or as to the distance of the camera from the crack so as to render them less inconclusive than they were. Nor did the photographs clearly and conclusively reflect the physical condition of the crack as of the time of the accident. Accordingly, the extent of the obviousness of the hazardous nature of the crack was not established so as to warrant consideration by the jury as to whether or not it was discoverable on a reasonable inspection so as to be probative of actual notice. Nor was anything else adduced probative of actual or constructive notice of the defective condition alleged to have existed. Under the circumstances of this case we are of the opinion that the interests of justice would best be served if a new trial were granted. Christ, P.J., Rabin, Munder, Martuscello and Latham, JJ., concur.