| Nicholas v New York City Hous. Auth. |
| 2009 NY Slip Op 06463 [65 AD3d 925] |
| September 15, 2009 |
| Appellate Division, First Department |
| Christopher Nicholas, Respondent, v New York CityHousing Authority, Appellant. |
—[*1] Martin R. Munitz, P.C., New York (Martin R. Munitz of counsel), for respondent.
Order, Supreme Court, New York County (Marcy S. Friedman, J.), entered February 10,2009, which denied defendant's motion for summary judgment dismissing the complaint,unanimously reversed, on the law, without costs, the motion granted, and the complaintdismissed. The Clerk is directed to enter judgment accordingly.
On July 3, 2005, plaintiff allegedly fell on an internal stairway in a building owned bydefendant New York City Housing Authority (NYCHA). At his deposition he was asked whetherthe accident occurred because his foot slipped, because he tripped, or whether he fell for anyother reason. Plaintiff definitively responded that he slipped. Plaintiff was then asked whetherthere was something on the step that caused him to slip. He responded, "Yes, it was wet." Hecould not identify the substance. Subsequently, the following question and answer ensued:
"Q. Was there anything—other than the water, was there anything else about thecondition of the step that caused you to fall?
"A. No."
Plaintiff testified that before the accident, he never had any problems with the staircase andhad never made any complaints to NYCHA about the steps. He also did not know how long thestep had been wet before the accident.
After discovery, NYCHA moved for summary judgment dismissing the action on thegrounds that it did not create the unidentified wet substance on the step, nor did it have actual orconstructive notice of the condition. Plaintiff opposed and claimed, for the first time, in anaffidavit, that the cause of his accident was "a defective/broken stair." He also submitted anaffidavit from an engineer who opined, inter alia, that the condition of the concrete nosing of thestep from which plaintiff fell constituted a violation of the building code "by reason of beingirregularly and grossly pock-marked and missing its steel nosing."
The court denied NYCHA's motion. After concluding that NYCHA made a prima facieshowing that it had no notice of a wet condition that allegedly caused plaintiff's fall, the court[*2]nevertheless found that plaintiff raised a triable issue of factas to whether the broken stair contributed to his fall.
We reverse. NYCHA met its prima facie burden of demonstrating that it neither created thecondition, nor had actual or constructive notice of the defective condition which causedplaintiff's fall (see e.g. Lewis v Metropolitan Transp. Auth., 99 AD2d 246, 249-250[1984], affd 64 NY2d 670 [1984]). In opposition, as the motion court found, plaintifffailed to demonstrate otherwise.
Instead, plaintiff, who had unequivocally testified that the sole cause of his fall was the wetcondition of the step, sought to add a new theory, i.e., that the defective step caused his fall. It isevident that his affidavit was tailored to avoid the consequences of his deposition testimony, andconstitutes feigned evidence that should be rejected (see e.g. Vilomar v 490 E. 181st St. Hous. Dev. Fund Corp Corp., 50AD3d 469 [2008]; Telfeyan v Cityof New York, 40 AD3d 372, 373 [2007]).
Thus, in the absence of any bona fide question of fact as to defendant's liability, thecomplaint should have been dismissed. Concur—Mazzarelli, J.P., Andrias, Nardelli,DeGrasse and Abdus-Salaam, JJ.