| Hunt v Meyers |
| 2009 NY Slip Op 04385 [63 AD3d 685] |
| June 2, 2009 |
| Appellate Division, Second Department |
| David J. Hunt et al., Respondents, v Jonathan J. Meyers etal., Appellants. |
—[*1] Joseph B. Fruchter, Hauppauge, N.Y., for respondents.
In an action to recover damages for personal injuries, etc., the defendants appeal from anorder of the Supreme Court, Suffolk County (Whelan, J.), dated June 20, 2008, which deniedtheir motion for summary judgment dismissing the complaint.
Ordered that the order is reversed, on the law, with costs, and the defendants' motion forsummary judgment dismissing the complaint is granted.
The injured plaintiff allegedly fell on the defendants' premises. The injured plaintiff and hiswife, derivatively, commenced this action against the defendants. The defendants moved forsummary judgment dismissing the complaint, contending, inter alia, that the injured plaintiffcould not identify the cause of his fall. The Supreme Court denied the motion. We reverse.
The defendants established their entitlement to judgment as a matter of law by submitting,inter alia, the deposition testimony of the injured plaintiff, in which he stated that he did notknow what had caused him to fall (seeReiff v Beechwood Browns Rd. Bldg. Corp., 54 AD3d 1015 [2008]; Kletke v GOS Corp., 51 AD3d875 [2008]; DeSantis v Lessing's,Inc., 46 AD3d 742 [2007]; Manning v 6638 18th Ave. Realty Corp., 28 AD3d 434 [2006];Curran v Esposito, 308 AD2d 428 [2003]; Visconti v 110 Huntington Assoc.,272 AD2d 320 [2000]). In opposition, the plaintiffs failed to submit evidence sufficient toraise a triable issue of fact. The injured plaintiff's affidavit, in which he identified the causes ofhis accident as the presence of ice and inadequate lighting conditions in the area where he fell,presented feigned issues of fact designed to avoid the consequences of his earlier depositiontestimony, and thus was [*2]insufficient to defeat the defendants'motion (see Hughes-Berg vMueller, 50 AD3d 856, 858 [2008]; Karwowski v New York City Tr. Auth., 44 AD3d 826 [2007]; Denicola v Costello, 44 AD3d990 [2007]; Manning v 6638 18thAve. Realty Corp., 28 AD3d 434 [2006]; Tejada v Jonas, 17 AD3d 448 [2005]; Califano v Campaniello,243 AD2d 528 [1997]; Garvin v Rosenberg, 204 AD2d 388 [1994]). Accordingly,the Supreme Court should have granted the defendants' motion for summary judgmentdismissing the complaint. Dillon, J.P., Florio, Balkin and Austin, JJ., concur.