Levi v. E. J. Korvette, Inc.

Judgment appealed from unanimously reversed, on the law and a new trial ordered, with $50 costs and disbursements to abide the event. The verdict is against the weight of the credible evidence. There is no satisfactory proof of a breach of warranty, express or implied, of fitness for use. And the testimony of plaintiff’s expert as to the angle of slope of the lawn, based entirely upon his observation of a photograph, or photographs, is entirely too speculative (cf. Valle v. City of New York, 22 Misc 2d 985; Rotker v. City of New York, 124 N. Y. S. 2d 231). This case may be distinguished from Marcus v. Manhattan Beach Parks Corp. (246 App. Div. 331) where a photograph was used to show gradual wear or deterioration of a stairway leading from a swimming pool, and merely supported proof of a worn condition testified to by the pictures. And in Becker v. Liscio (223 App. Div. 838 698) the photographs themselves showed a condition which gave notice of a defect. In the ease before us, the photograph merely revealed a sloping lawn, and the testimony of the angle as deduced therefrom is pure conjecture, Concur — Breitel, J. P., MeNally, Stevens and Eager, JJ.