| Valenti v Exxon Mobil Corp. |
| 2008 NY Slip Op 03379 [50 AD3d 1382] |
| April 17, 2008 |
| Appellate Division, Third Department |
| Alfred Valenti, Appellant, v Exxon Mobil Corporation,Respondent. |
—[*1] McCusker, Anselmi, Rosen & Carvelli, P.C., New York City (Alicyn B. Craig of counsel),for respondent.
Mercure, J.P. Appeals (1) from an order of the Supreme Court (Work, J.), entered January20, 2007 in Ulster County, which granted defendant's motion for summary judgment dismissingthe complaint, and (2) from an order of said court, entered June 12, 2007 in Ulster County, whichdenied plaintiff's motion for reconsideration.
Plaintiff asserts that he sustained permanent physical injuries when he slipped and fell on apatch of ice at defendant's service station in Ulster County. Thereafter, plaintiff commenced thisaction, alleging that defendant negligently failed to maintain its property in a reasonably safecondition. Defendant ultimately moved for summary judgment dismissing the complaint,claiming that, among other things, there is no evidence that ice caused plaintiff's fall. SupremeCourt dismissed the complaint and denied plaintiff's subsequent motion, which the court deemeda motion to renew. Plaintiff appeals from both orders and we now affirm.
Initially, we reject plaintiff's argument that Supreme Court erred by denying his motion torenew. In opposing defendant's motion for summary judgment, plaintiff relied upon defendant'sexhibits—which included only evidence supporting its entitlement to summaryjudgment—in lieu of providing his own copies of the transcripts. On his motion forrenewal, plaintiff submitted the complete transcripts and conceded that he failed to do so earlierbased solely upon his erroneous assumption that defendant's exhibits contained completetranscripts. In our view, plaintiff did not demonstrate a reasonable justification for his failure topresent this [*2]evidence in opposition to defendant's motion forsummary judgment and, thus, Supreme Court properly denied plaintiff's motion to renew(see CPLR 2221 [e]; seeStocklas v Auto Solutions of Glenville, Inc., 9 AD3d 622, 625 [2004], lv dismissedand denied 4 NY3d 738 [2004]).
Moreover, although we agree with plaintiff that defendant failed to meet its initial burden ofestablishing that it " 'maintained the property . . . in a reasonably safe condition and. . . neither created the allegedly dangerous condition existing thereon nor hadactual or constructive notice thereof' " (Mokszki v Pratt, 13 AD3d 709, 710 [2004], quoting Richardsonv Rotterdam Sq. Mall, 289 AD2d 679, 679 [2001]; see Reinemann v Stewart's Ice CreamCo., 238 AD2d 845, 846 [1997]), defendant did establish prima facie that ice was not aproximate cause of plaintiff's fall. Specifically, defendant presented the testimony of witnessesthat they did not see plaintiff slip on ice, as well as plaintiff's deposition testimony that he fellwhile stepping off a curb after exiting defendant's store and that he never saw the ice thatallegedly caused the fall. Plaintiff was therefore obligated in response "to provide proof'sufficient to permit a finding of proximate cause based not upon speculation, but upon thelogical inferences to be drawn from the evidence' " (Larkins v Hayes, 267 AD2d 524, 525[1999], quoting Ellis v County of Albany, 205 AD2d 1005, 1007 [1994]).
Plaintiff, however, presented only his own affidavit in opposition, averring that he slipped onice prior to entering the store, that he recalled seeing the ice before leaving the premises,and that the ice was old and "mixed with dirt and similar substances." This affidavit directlycontradicts his deposition testimony, as set forth above. Inasmuch as "a nonmovant cannot 'avoidsummary judgment by alleging issues of fact created by self-serving affidavits contradicting priorsworn deposition testimony' " (Campagnano v Highgate Manor of Rensselaer, 299 AD2d714, 715 [2002], quoting Greene v Osterhoudt, 251 AD2d 786, 788 [1998]; see Daisernia v Thomas, 12 AD3d998, 999 [2004]; Benamati vMcSkimming, 8 AD3d 815, 817 [2004]), it cannot be said that Supreme Court erred indismissing the complaint.
Plaintiff's remaining arguments are rendered academic by our decision.
Spain, Rose, Lahtinen and Kavanagh, JJ., concur. Ordered that the orders are affirmed, withcosts.