Garfinkel v Manhattan & Bronx Surface Tr. Operating Auth.

2004 NYSlipOp 05165

June 15, 2004

Appellate Division, First Department

As corrected through Wednesday, August 25, 2004

Phyllis Garfinkel, Appellant, v Manhattan and Bronx Surface Transit Operating Authority et al., Respondents, et al., Defendants.

—[*1]

Order, Supreme Court, New York County (Robert D. Lippmann, J.), entered October 24, 2003, which, to the extent appealed from as limited by the briefs, granted cross motions by the municipal and Transit Authority defendants for summary judgment dismissing the complaint and all cross claims against them, unanimously affirmed, without costs.

Plaintiff fell when she got off a bus, but could not identify the cause of the accident. In her deposition testimony, she offered various possibilities, including a crack in the curb or a hole where the sidewalk had been torn up. This speculation did not create a factual issue warranting trial (Thomas v Our Lady of Mercy Med. Ctr., 289 AD2d 37, 38 [2001]). Although plaintiff contends that her affidavit in opposition, citing a cracked curb as the cause, clarifies her testimony, the affidavit was clearly submitted to avoid the consequences of her earlier testimony, and is thus insufficient to defeat summary judgment (Phillips v Bronx Lebanon Hosp., 268 AD2d 318, 320 [2000]).[*2]

We have considered plaintiff's remaining arguments and find them to be without merit. Concur—Tom, J.P., Saxe, Ellerin, Marlow and Catterson, JJ.