Covington v. City of New York

Appellate Division of the Supreme Court of New York

Covington v. City of New York

119 A.D.3d 408, 988 N.Y.S.2d 486

CourtAppellate Division of the Supreme Court of the State of New York

DecidedJuly 3, 2014

Docket12957 17576/05

StatusPublished

This text of 119 A.D.3d 408 (Covington v. City of New York) is published on Counsel Stack Legal Research, covering Appellate Division of the Supreme Court of the State of New York primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Covington v. City of New York, 119 A.D.3d 408, 988 N.Y.S.2d 486 (N.Y. Ct. App. 2014).

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Opinion

*409 Order, Supreme Court, Bronx County (Larry S. Schachner, J.), entered November 13, 2012, which granted defendants’ motions for summary judgment dismissing the complaint, unanimously affirmed, without costs.

Defendants each demonstrated entitlement to judgment as a matter of law in this action where plaintiff allegedly tripped and fell on a sidewalk defect. Defendant City submitted evidence showing that it had no written notice of the alleged defect (see Administrative Code of City of NY § 7-201 [c]; Castro v City of New York, 101 AD3d 573 [1st Dept 2012]), and defendant hospital demonstrated that it was a lessee, and not the owner of the premises in front of which plaintiff allegedly fell (see Tucciarone v Windsor Owners Corp., 306 AD2d 162, 163 [1st Dept 2003]).

In opposition, plaintiff failed to raise a triable issue of fact. To the extent that her affidavit contradicted her prior testimony as to the defect, it was clearly tailored to avoid the consequences of her earlier testimony and was properly disregarded by the motion court (see e.g. Sutin v Manhattan & Bronx Surface Tr. Operating Auth., 54 AD3d 616 [1st Dept 2008]; see also Addo v Melnick, 61 AD3d 453 [1st Dept 2009]).

We have considered plaintiffs remaining contentions and find them unavailing.

Concur — Gonzalez, P.J., Acosta, DeGrasse, Freedman and Richter, JJ.

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*409 Order, Supreme Court, Bronx County (Larry S. Schachner, J.), entered November 13, 2012, which granted defendants’ motions for summary judgment dismissing the complaint, unanimously affirmed, without costs.

Defendants each demonstrated entitlement to judgment as a matter of law in this action where plaintiff allegedly tripped and fell on a sidewalk defect. Defendant City submitted evidence showing that it had no written notice of the alleged defect (see Administrative Code of City of NY § 7-201 [c]; Castro v City of New York, 101 AD3d 573 [1st Dept 2012]), and defendant hospital demonstrated that it was a lessee, and not the owner of the premises in front of which plaintiff allegedly fell (see Tucciarone v Windsor Owners Corp., 306 AD2d 162, 163 [1st Dept 2003]).

In opposition, plaintiff failed to raise a triable issue of fact. To the extent that her affidavit contradicted her prior testimony as to the defect, it was clearly tailored to avoid the consequences of her earlier testimony and was properly disregarded by the motion court (see e.g. Sutin v Manhattan & Bronx Surface Tr. Operating Auth., 54 AD3d 616 [1st Dept 2008]; see also Addo v Melnick, 61 AD3d 453 [1st Dept 2009]).

We have considered plaintiffs remaining contentions and find them unavailing.

Concur — Gonzalez, P.J., Acosta, DeGrasse, Freedman and Richter, JJ.

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Bluebook (online)

119 A.D.3d 408, 988 N.Y.S.2d 486, Counsel Stack Legal Research, https://law.counselstack.com/opinion/covington-v-city-of-new-york-nyappdiv-2014.

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