Garcia v. New York City Industrial Development Agency

279 A.D.2d 328, 718 N.Y.S.2d 351, 2001 N.Y. App. Div. LEXIS 468

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: January 16, 2001
• Status: Published

Opinion

Order, Supreme Court, Bronx County (Barry Salman, J.), entered on or about October 22, 1999, which granted defendants-respondents’ motion for summary judgment dismissing the complaint as against them, unanimously affirmed, without costs.

The motion was properly granted in the absence of evidence rebutting defendants’ prima facie showing that the allegedly dangerous condition that caused plaintiffs injuries was readily observable (see, Serrano v New York City Hous. Auth., 268 AD2d 230; Goslin v La Mora, 137 AD2d 941). Plaintiffs claim in his affidavit in opposition that the danger was obscured by an optical illusion is an issue raised there for the first time, and is inconsistent with his deposition testimony (cf., Kistoo v City of New York, 195 AD2d 403, 404), and also without any expert or other support. Nor can plaintiffs failure to exercise ordinary attention and perception be excused by defendants’ alleged failure to comply with an alleged industry practice that would have obviated the danger (see, Garcia v New York City Hous. Auth., 234 AD2d 102, 103, lv denied 91 NY2d 804, citing, inter alia, Russell v Archer Bldg. Ctrs., 219 AD2d 772). Concur — Rosenberger, J. P., Mazzarelli, Andrias, Rubin and Saxe, JJ.