Batton v. Elghanayan

OPINION OF THE COURT

Memorandum.

The order appealed from should be reversed, with costs, and the case remitted to Supreme Court, Westchester County, for a new trial. Unlike the situation in Mooney v Turner (35 AD2d 674), the five photographs in this case, the accuracy of which has not been challenged, are sufficiently clear and precise to create an issue of fact as to constructive notice of the defect which is best submitted to and evaluated by the jury. We note that these photographs were taken the day after the accident, that the plaintiff has testified that they are a fair and accurate…