Rosario v. Sebco I. Associates, L.P.

305 A.D.2d 307, 761 N.Y.S.2d 607, 2003 N.Y. App. Div. LEXIS 5921

Opinion

Order, Supreme Court, Bronx County (Norma Ruiz, J.), entered on or about April 30, 2002, which granted defendants’ motions for summary judgment dismissing the complaint, unanimously affirmed, without costs.

Plaintiff allegedly tripped upon a lock affixed to a sidewalk cellar door. The photographic evidence, however, indicates that the door is equipped with only one set of hasps for attaching a lock and that those hasps are situated inches from the building line, and the placement of a lock at that location would not have been actionable (see Kempe v Concourse Realty Corp., 237 App Div 708 [1933]). Although plaintiff eventually testified that the cellar doors were at the time of her accident equipped with two sets of hasps and that she tripped upon a lock affixed to a set of hasps located some five feet from the building, and thus closer to the likely flow of pedestrian traffic than its alleged counterpart, this testimony, plainly at variance with the photographic evidence and, indeed, plaintiff’s own prior testimony in which she indicated that she tripped on a lock located within inches of the building line, was insufficient to raise a triable issue.

We have reviewed plaintiff’s remaining contentions and find them unavailing. Concur — Buckley, P.J., Tom, Ellerin, Lerner and Friedman, JJ.