Rogers v. City of New York Housing Authority

Appellate Division of the Supreme Court of New York

Rogers v. City of New York Housing Authority

298 A.D.2d 312, 749 N.Y.S.2d 504, 2002 N.Y. App. Div. LEXIS 10232

CourtAppellate Division of the Supreme Court of the State of New York

DecidedOctober 29, 2002

StatusPublished

This text of 298 A.D.2d 312 (Rogers v. City of New York Housing Authority) is published on Counsel Stack Legal Research, covering Appellate Division of the Supreme Court of the State of New York primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

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Rogers v. City of New York Housing Authority, 298 A.D.2d 312, 749 N.Y.S.2d 504, 2002 N.Y. App. Div. LEXIS 10232 (N.Y. Ct. App. 2002).

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Opinion

Judgment, Supreme Court, Bronx County (Bertram Katz, J.), entered on or about February 16, 2001, dismissing the complaint and bringing up for review an order, same court and Justice, entered August 10, 2000, which granted defendant’s motion for summary judgment, unanimously affirmed, without costs. Appeal from the aforesaid order unanimously dismissed, without costs, as subsumed within the appeal from the ensuing judgment.

Plaintiffs decedent’s testimony that she had slipped on numerous transparent pieces of glass, both large and small, and that she had not previously seen this particular glass, did not suffice to raise a triable issue of fact as to whether defendant had constructive notice of the alleged dangerous condition (see Gordon v American Museum of Natural History, 67 NY2d 836). Likewise, the evidence did not raise a triable issue as to whether there was a ‘‘recurring problem” (see Lancaster v New York City Hous. Auth., 226 AD2d 145).

Contrary to plaintiffs assertion, the record reveals that the statements in the decedent’s affidavit, which we note was dated 10 years after the accident, in which she claimed to have seen and stepped on the glass in question on the evening before the [313]*313accident, were in direct contrast to her testimony at her General Municipal Law § 50-h hearing and deposition. Therefore, the court appropriately determined that the decedent’s affidavit was insufficient to defeat defendant’s summary judgment motion (see Harty v Lenci, 294 AD2d 296; Phillips v Bronx Lebanon Hosp., 268 AD2d 318, 320).

We have considered and rejected plaintiffs remaining arguments. Concur — Mazzarelli, J.P., Andrias, Buckley and Marlow, JJ.

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Judgment, Supreme Court, Bronx County (Bertram Katz, J.), entered on or about February 16, 2001, dismissing the complaint and bringing up for review an order, same court and Justice, entered August 10, 2000, which granted defendant’s motion for summary judgment, unanimously affirmed, without costs. Appeal from the aforesaid order unanimously dismissed, without costs, as subsumed within the appeal from the ensuing judgment.

Plaintiffs decedent’s testimony that she had slipped on numerous transparent pieces of glass, both large and small, and that she had not previously seen this particular glass, did not suffice to raise a triable issue of fact as to whether defendant had constructive notice of the alleged dangerous condition (see Gordon v American Museum of Natural History, 67 NY2d 836). Likewise, the evidence did not raise a triable issue as to whether there was a ‘‘recurring problem” (see Lancaster v New York City Hous. Auth., 226 AD2d 145).

Contrary to plaintiffs assertion, the record reveals that the statements in the decedent’s affidavit, which we note was dated 10 years after the accident, in which she claimed to have seen and stepped on the glass in question on the evening before the [313]*313accident, were in direct contrast to her testimony at her General Municipal Law § 50-h hearing and deposition. Therefore, the court appropriately determined that the decedent’s affidavit was insufficient to defeat defendant’s summary judgment motion (see Harty v Lenci, 294 AD2d 296; Phillips v Bronx Lebanon Hosp., 268 AD2d 318, 320).

We have considered and rejected plaintiffs remaining arguments. Concur — Mazzarelli, J.P., Andrias, Buckley and Marlow, JJ.

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Bluebook (online)

298 A.D.2d 312, 749 N.Y.S.2d 504, 2002 N.Y. App. Div. LEXIS 10232, Counsel Stack Legal Research, https://law.counselstack.com/opinion/rogers-v-city-of-new-york-housing-authority-nyappdiv-2002.

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