Perez v. Bronx Park South Associates

285 A.D.2d 402, 728 N.Y.S.2d 33, 2001 N.Y. App. Div. LEXIS 7500

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: July 19, 2001
• Status: Published

Opinions

—Order, Supreme Court, Bronx County (Bertram Katz, J.), entered October 24, 1999, which granted defendant’s motion for summary judgment dismissing the complaint, affirmed, without costs.

This is a personal injury action in which plaintiff Carlos Perez alleges that he slipped and fell on the front steps of his apartment building, which is designated as 940 Bronx Park South, Bronx, New York (the building). The building is owned and maintained by defendant Bronx Park South Associates (Bronx Park).

Plaintiff, at a deposition conducted on February 3, 1999, testified that he worked close to his residence and returned often during the day, and that when he left for work at 5:00 a.m., he did not notice any debris or oil on the steps of the building. Plaintiff maintained that he returned to his apartment for lunch at approximately 12:00 p.m., at which time there was no debris on the steps. Plaintiff then testified that he left to return to work at approximately 1:30 p.m. and slipped and fell on supermarket fliers that were probably placed on the steps while he was inside his apartment eating lunch. Initially, plaintiff averred that he fell on the fliers and “that was it,” but, after some prodding from his attorney, who queried “[djidn’t you tell me you slipped on garbage and oil on the steps?” plaintiff agreed that there was oil on the first step, but that the oil was not there earlier in the day and appeared at some point between the time he returned for lunch at noon and when he fell, l1/2 hours later.

It is well established that a landowner is under a duty to maintain its property in a reasonably safe condition under the existing circumstances, which include the likelihood of injury to third parties, the potential that any such injury would be of a serious nature, and the burden of avoiding the risk (Basso v Miller, 40 NY2d 233, 241; Pappalardo v New York Health & Racquet Club, 279 AD2d 134). However, in order to recover damages for an alleged breach of this duty, a party must demonstrate that the landlord created, or had actual or constructive notice of, the hazardous condition which precipitated the injury (Leo v Mt. St. Michael Academy, 272 AD2d 145; O’Connor-Miele v Barhite & Holzinger, 234 AD2d 106, 106-107; Piacquadio v Recine Realty Corp., 84 NY2d 967, 969). In order to constitute constructive notice, a defect must be visible and apparent and it must exist for a sufficient length of time prior to the accident to allow the owner to discover and remedy it (Gordon v American Museum of Natural History, 67 NY2d 836, 837; O’Connor-Miele v Barhite & Holzinger, supra, at 106; O’Neill v Maiara, 267 AD2d 440).

In light of the foregoing, plaintiffs own deposition testimony makes it clear that none of the criteria necessary to sustain a cause of action against the landowner have been met. Plaintiffs submission of a one-page affidavit from his neighbor, an alleged eyewitness to the accident, which consists of nothing more than two relevant sentences of conclusory allegations tailored to overcome plaintiffs testimony, is insufficient to warrant the denial of defendant’s motion. As we held in Phillips v Bronx Lebanon Hosp. (268 AD2d 318, 320), “[w]hile issues of fact and credibility may not ordinarily be determined on a motion for summary judgment, where, as here, the self-serving affidavits submitted by plaintiff in opposition clearly contradict plaintiffs own deposition testimony and can only be considered to have been tailored to avoid the consequences of her earlier testimony, they are insufficient to raise a triable issue of fact to defeat defendant’s motion for summary judgment.” (See also, Glick & Dolleck v Tri-Pac Export Corp., 22 NY2d 439, 441 [“The court may not weigh the credibility of the affiants on a motion for summary judgment unless it clearly appears that the issues are not genuine, but feigned.” (emphasis added)].) Concur — Nardelli, J. P., Williams, Tom and Lerner, JJ.