This page summarizes and comments on a published court decision. It is general information, not legal advice, and reading it does not create an attorney-client relationship. Every case depends on its own facts. Unless this page says otherwise, The Eskesen Law Firm did not represent any party in this case.
Bottom line
A defendant that asks to dismiss a fall case because the injured person cannot say what made her fall still must prove that point, and the testimony it submits counts against it too. Here, the First Department reinstated a woman’s sidewalk fall claim against two defendants, because testimony they themselves submitted agreed that her photo of the defect fairly and accurately showed the area at the time, even though Google Maps images from before and after her fall did not show it.
The case
- Court
- Appellate Division, First Department
- Decided
- November 10, 2026
- Case
- Then v Meridian Realty Inc.
- Citation
- 2026 NY Slip Op 06566
- Official text
- Read the decision on the New York courts’ official reporter site
The facts
The plaintiff alleged that she fell on a sidewalk. She sued Meridian Realty Inc., L & L 2085 Amsterdam Realty LLC, Kennedy Chicken & Grill Inc., and others. At her deposition, she authenticated a photo that, she testified, showed the area of her accident, and circled the defect she believed caused it. The Supreme Court, New York County, granted Kennedy summary judgment in one order and granted L & L and Meridian summary judgment in a later one. She appealed both.
The holding
The First Department unanimously affirmed the first order and reversed the second. Kennedy was properly dismissed “based on plaintiff’s deposition testimony that her accident occurred on the sidewalk in front of a bodega, and not at the Kennedy building” (2026 NY Slip Op 06566, *1). But L & L and Meridian “did not establish prima facie that plaintiff could not identify the cause of her fall without resorting to speculation” (id.). They “permissibly relied on Google Maps images (see CPLR 4532-b) taken both before and after plaintiff’s accident negating the existence of the condition she identified” (id.). Yet they also submitted witnesses’ testimony that her photo and similar photos of the same defect “fairly and accurately depicted the area of the accident at the time thereof” (id.). “By submitting this testimony in support of their motions, L & L and Meridian adopted it as accurate” (id.). Questions also remained on constructive notice: Meridian’s field manager testified that he inspected its property four times a week and saw no dangerous conditions, but a defendant may be liable for failing “to use reasonable care to discover and correct a condition which it ought to have found” (id. at *2, quoting Rogers v Dorchester Assoc.). The court left the defendants’ requests for spoliation sanctions against her for the trial court to decide first (id.).
What changed
Nothing new: this applies settled law, including the Court of Appeals’ decision in Rogers v Dorchester Assoc. (32 NY2d 553 [1973]) and the court’s earlier decisions in Haibi v 790 Riverside Dr. Owners, Inc. (156 AD3d 144 [1st Dept 2017]) and Valencia v Sol Goldman Invs. LLC (250 AD3d 443 [1st Dept 2026]).
What it means
- If a defendant asks the court to dismiss a case because the injured person cannot say, or cannot say specifically, what made him or her fall, the defendant must prove that and leave no real question about it. Here, she circled the defect in a photo at her deposition, so the defendants needed evidence that undercut her, such as proof that the defect was not there when she fell. They offered Google Maps images for that, but testimony they themselves submitted agreed that her photo accurately showed the area at the time.
- Under CPLR 4532-b, images from a web mapping service such as Google Maps are admissible if they show the date they were created, subject to a challenge that they do not “fairly and accurately portray” what they are offered to prove. However, they are not the last word.
- A defendant that submits testimony to support its motion adopts that testimony as accurate, including the parts that help the injured person.
- Regular inspections do not end the question of notice. A defendant may be responsible for a condition it should have found with reasonable care, even if its inspector did not see it.
Our view
Commentary by Frank N. Eskesen. This section is opinion.
Google Maps images have become a familiar exhibit in sidewalk cases. But an image from another day may not accurately show the condition of the sidewalk on the day of the fall. Here, testimony the defendants themselves submitted agreed that the injured woman’s photo showed the area as it was. As in our entry on Martinez v 561 W. 144 Realty (First Department, October 27, 2026), where a building owner submitted the tenant’s own deposition testimony and it undercut the owner’s motion, a defendant’s own evidence ended up helping the injured person. Two lessons. 1. After a fall, if you are able, photograph the exact spot soon from various angles, close up and from farther back, with a storefront, address, or other landmark in the picture, and keep the original files. If the City may be responsible, a Notice of Claim generally must be served within 90 days. Get legal advice promptly. 2. For lawyers, testimony you submit in support of your motion is treated as adopted as accurate, including the parts that help the other side. A photo shown to depict the spot as it was at the time can say more than images from before and after.
Topics
Court: First Department. Year: 2026. Statutes: CPLR 4532-b. Result: affirmed (first order); reversed (second order).
Reviewed by Frank N. Eskesen, admitted in New York since 2000. Decided November 10, 2026. Posted November 11, 2026.
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