Opinion
May 10, 1966
Judgment in favor of plaintiff in the sum of $26,859.50, unanimously reversed, on the law and on the facts, and a new trial ordered, with $50 costs and disbursements to abide the event. The finding of constructive notice implicit in the verdict is against the weight of the evidence. Plaintiff testified that she first saw the separation in the carpet after she fell. The opinion of plaintiff's expert to the effect that the separation existed prior to the occurrence was based solely on photographs taken nine months after the event. There is no other testimony as to the duration of the condition of the carpet prior to the accident. The expert's opinion is too speculative. (Cf. Marcus v. Manhattan Beach Parks Corp., 246 App. Div. 331, 332, where there was proof other than the photographs; see, also, Goodman v. Caledonian Ins. Co. of Scotland, 222 N.Y. 121, 125-126; McDermot v. City of New York, 287 F.2d 49, 50; Fireman's Ins. Co. of Baltimore v. Mohlman Co., 91 F. 85, 87; Valle v. City of New York, 22 Misc.2d 985; Gibbons v. City of New York, 200 Misc. 699; Rotker v. City of New York, 124 N.Y.S.2d 231, affd. N.Y.L.J., Jan. 21, 1955, p. 6, col. 4.)
Concur — Breitel, J.P., Rabin, McNally and Stevens, JJ.