Marcelle v. New York City Transit Authority

289 A.D.2d 459, 735 N.Y.S.2d 580, 2001 N.Y. App. Div. LEXIS 12993

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: December 24, 2001
• Status: Published

Opinion

In an action to recover damages for personal injuries, etc., the plaintiffs appeal from an order of the Supreme Court, Kings County (Bruno, J.), dated October 18, 2000, which granted the defendant’s motion for summary judgment dismissing the complaint.

Ordered that the order is affirmed, with costs.

The defendant established its prima facie entitlement to summary judgment dismissing the complaint as the plaintiffs’ deposition testimony failed to show that there was an unsafe condition on the stairs which was created by the defendant or of which it had actual or constructive notice (see, Marku v 33 S & P Realty Corp., 251 AD2d 633). In opposition, the plaintiffs submitted self-serving affidavits in an effort to show that the stairs where the injured plaintiff fell were covered with a soapy, slimy substance. These affidavits contradicted the plaintiffs’ earlier deposition testimony. Thus, they presented a feigned factual issue designed to avoid the consequences of their earlier statements that the steps were merely damp and wet, and were insufficient to show the existence of a triable issue of fact (see, Nieves v ISS Cleaning Servs. Group, 284 AD2d 441; Phillips v Bronx Lebanon Hosp., 268 AD2d 318; Buziashvili v Ryan, 264 AD2d 797; Prunty v Keltie’s Bum Steer, 163 AD2d 595).

The plaintiffs’ remaining contention is without merit. O’Brien, J. P.; Santucci, Florio and Schmidt, JJ., concur.