Whiting v. Bella Vista Development Corp. (N.Y.App.Div. 12/09/1999)

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Supreme Court12/9/1999 repair depicted was larger than it had been when he was making deliveries. Furthermore, Bernard stated that the area of disrepair shown extended about two feet from the concrete loading dock. Plaintiff estimated that he fell about four feet from the loading dock, which was outside the area of disrepair described by Bernard. In the absence of proof that the conditions depicted in the photographs taken in June 1995 were substantially the same as existed at the time of plaintiff's fall, we cannot say that Supreme Court erred in determining that the photographs were not properly authenticated and, therefore, inadmissible (see, Truesdell v. Rite Aid of N.Y., 228 AD2d 922; Kniffen v. Thruway Food Mkts., 177 AD2d 920). In reference to plaintiff's allegations of inadequate lighting, given the testimony that he made numerous deliveries to the same location prior to his fall and never complained about the lighting, there was insufficient proof from which it could be reasonably inferred that the lighting conditions were a proximate cause of his injury or that defendants had actual or constructive notice of that condition. Plaintiffs also contend that Supreme Court's granting of summary judgment was premature. The success of this contention depends on whether plaintiffs can demonstrate how further discovery might reveal the existence of material facts within defendants' exclusive control "and how further discovery is likely to reveal facts which would affect the outcome" (Welsh v. County of Albany, 235 AD2d 820, 822). Neither plaintiffs' initial opposing papers nor their attorney's supplemental affirmation shows what specific information would be revealed by additional discovery or how that information "would yield evidence to create any triable issue" (Smith v Fishkill Health-Related Ctr., 169 AD2d 309, 316, lv denied 78 NY2d 864). Thus, we find plaintiffs' argument on this point unpersuasive. Peters, Spain, Carpinello and Graffeo, JJ., concur. ORDERED that the order is affirmed, with costs.

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