| Karwowski v New York City Tr. Auth. |
| 2007 NY Slip Op 07820 [44 AD3d 826] |
| October 16, 2007 |
| Appellate Division, Second Department |
| Tadeusz Karwowski, Respondent, v New York City TransitAuthority, Appellant. |
—[*1] Hankin, Handwerker & Mazel, PLLC, New York, N.Y. (Mitchell Flachner of counsel), forrespondent.
In an action to recover damages for personal injuries, the defendant appeals, as limited by itsbrief, from so much of an order of the Supreme Court, Kings County (Solomon, J.), dated June27, 2006, as denied that branch of its motion which was for summary judgment dismissing thecomplaint.
Ordered that the order is reversed insofar as appealed from, on the law, with costs, and thatbranch of the defendant's motion which was for summary judgment dismissing the complaint isgranted.
The plaintiff allegedly was injured when he fell while descending a stairway in the NassauAvenue subway station in Brooklyn. At his statutory hearing pursuant to General Municipal Law§ 50-h, and at his examination before trial, the plaintiff testified that he did not know whatcaused him to fall, although he noted that there was snow and rain falling at the time of theaccident, and that the subway steps were wet.
The defendant met its burden in moving for summary judgment by submitting the hearingand deposition testimony of the plaintiff, which indicated that he did not know the cause of theaccident. In the absence of such evidence, the jury could not return a verdict in favor of theplaintiff without engaging in improper speculation as to the cause of the accident (see Manning v 6638 18th Ave. RealtyCorp., 28 AD3d 434 [2006]; Oettinger v Amerada Hess Corp., 15 AD3d 638 [2005];Christopher v New York City Tr. Auth., 300 AD2d 336 [2002]; Teplitskaya v 3096Owners Corp., 289 [*2]AD2d 477 [2001]; Brown-Phiferv Cross County Mall Multiplex, 282 AD2d 564 [2001]).
To the extent that the plaintiff's affidavit submitted in opposition to the defendant's motionasserted that the cause of his fall was a wet condition on the subway stairs, it presented a feignedissue of fact designed to avoid the consequences of his earlier deposition testimony, and thus wasinsufficient to defeat the defendant's motion (see Stancil v Supermarkets Gen., 16 AD3d 402 [2005]; Oettinger v Amerada Hess Corp., 15AD3d 638 [2005]; Christopher v New York City Tr. Auth., 300 AD2d 336 [2002];Marcelle v New York City Tr. Auth., 289 AD2d 459 [2001]). Rivera, J.P., Covello,Balkin and McCarthy, JJ., concur.