Steiner v. City of New York

—In an action to recover damages for personal injuries, the plaintiff appeals from so much of a judgment of the Supreme Court, Kings County (Vinik, J.), entered April 1, 1992, as, upon granting the motion of the defendant Myron Scher pursuant to CPLR 4401 for judgment, as a matter of law, during trial, dismissed her complaint insofar as it was asserted against the defendant Myron Scher and, upon a jury verdict finding the defendant City of New York not at fault in the happening of the accident, is in favor of that defendant.

Ordered that the judgment is affirmed insofar as appealed from, with costs.

The Supreme Court did not err in excluding from evidence the two photographs marked exhibits 3 and 4 for identification. The curtain rod in the photographs was not a proper comparative object and the photographs did not serve to illustrate or measure the depth of the depression in the sidewalk where the plaintiff fell with any degree of accuracy (see, 29 Am Jur 2d, Evidence, § 793; 3 Wigmore, Evidence § 798 [Chadbourne rev 1970]). Lawrence, J. P., O’Brien, Joy and Florio, JJ., concur.