Garcia-Martinez v. City of New York

68 A.D.3d 428, 891 N.Y.2d 21

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: December 3, 2009
• Status: Published

Opinion

Defendants established prima facie, through plaintiffs deposition testimony, that they did not breach their duty as common carriers to provide a safe place for bus passengers to disembark (see Malawer v New York City Tr. Auth., 18 AD3d 293, 294-295 [2005], affd 6 NY3d 800 [2006]; Blye v Manhattan & Bronx Surface Tr. Operating Auth., 124 AD2d 106, 109 [1987], affd 72 NY2d 888 [1988]). Plaintiff testified that she was discharged at a designated bus stop, directly in front of a cleared path, which had a patch of ice on it, leading to the sidewalk, and that she had safely exited the bus before she fell on the sidewalk.

Plaintiffs affidavit in opposition, stating that the entire path to the sidewalk was covered with ice, which therefore was impossible to avoid, contradicted her deposition testimony describing a narrower patch of ice in the middle of the three-foot-wide pathway, and thus created only a feigned issue of fact insufficient to defeat defendants’ motion (see Pippo v City of New York, 43 AD3d 303, 304 [2007]; Telfeyan v City of New York, 40 AD3d 372 [2007]). Concur — Gonzalez, P.J., Tom, Andrias, Nardelli and Richter, JJ.