Gloth v. Brusco Equities, LLC, Inc.

1 A.D.2d 294, 767 N.Y.S.2d 593, 1 A.D.3d 294, 2003 N.Y. App. Div. LEXIS 12538

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: November 25, 2003
• Status: Published

Opinion

Order, Supreme Court, New York County (Harold Beeler, J), entered January 2, 2003, which granted defendants’ motion for summary judgment and dismissed the complaint, unanimously affirmed, without costs.

There is no evidence that defendants had actual or constructive notice of the defective condition that caused plaintiff’s injury (see Juarez v Wavecrest Mgt. Team, 88 NY2d 628, 646 [1996]). The court properly disregarded plaintiffs affidavit on the issue of notice since it contradicted his prior deposition testimony and was clearly tailored to create an issue of fact (Phillips v Bronx Lebanon Hosp., 268 AD2d 318, 320 [2000]). Concur — Nardelli, J.P, Andrias, Rosenberger and Friedman, JJ.