| Disla v City of New York |
| 2009 NY Slip Op 06644 [65 AD3d 949] |
| September 24, 2009 |
| Appellate Division, First Department |
| Martin Disla, Appellant, v City of New York et al.,Defendants, and LS Cabrini Associates LLC, Respondent. |
—[*1] Nicoletti Gonson Spinner & Owen LLP, New York (Laura M. Mattera of counsel), forrespondent.
Order, Supreme Court, New York County (Karen S. Smith, J.), entered September 29, 2008,which, in an action for personal injuries, granted defendant-respondent's motion for summaryjudgment dismissing the complaint as against it, unanimously affirmed, without costs.
Plaintiff alleges that he was injured when, while walking on the sidewalk adjacent torespondent's building, his right foot slipped on a patch of ice and he was caused to fall when hisfoot became caught on a crack in the sidewalk. In opposition to respondent's prima facie showingthat it lacked notice of the alleged icy condition, plaintiff failed to raise a triable issue of fact (see Espinell v Dickson, 57 AD3d252, 253 [2008]). There is no evidence as to whether the ice upon which plaintiff slippedresulted from a snow accumulation two days earlier or was the later product of a thaw/freezecycle reflected in the meteorological data, and plaintiff's contention that defendant had notice ofthe ice condition or that it was the result of improper snow removal is speculative (seeSimmons v Metropolitan Life Ins. Co., 84 NY2d 972, 973-974 [1994]; Lenti v Initial Cleaning Servs., Inc., 52AD3d 288, 289 [2008]). Furthermore, plaintiff's affidavit is insufficient to defeatrespondent's motion, as it contradicts his deposition testimony and denotes an attempt to avoidthe consequences of his earlier testimony (see Phillips v Bronx Lebanon Hosp., 268AD2d 318, 320 [2000]).
Respondent also established that the cracked condition of the sidewalk was, as demonstratedby its expert, too trivial to be actionable (see Trincere v County of Suffolk, 90 [*2]NY2d 976 [1997]), and plaintiff failed to raise a triable issue of factwhere his expert rendered an opinion with respect to the wrong area of the sidewalk.Concur—Tom, J.P., Sweeny, McGuire, DeGrasse and Freedman, JJ.