| Garcia v Good Home Realty, Inc. |
| 2009 NY Slip Op 07938 [67 AD3d 424] |
| November 5, 2009 |
| Appellate Division, First Department |
| Jorgina Garcia, Appellant, v Good Home Realty, Inc.,Respondent. |
—[*1]
Order, Supreme Court, Bronx County (Norma Ruiz, J.), entered July 2, 2008, which, in anaction for personal injuries sustained in a slip and fall on an interior staircase in an apartmentbuilding, granted defendant's motion for summary judgment dismissing the complaint,unanimously affirmed, without costs.
Defendant established its prima facie entitlement to summary judgment by showing that itneither created, nor had actual or constructive notice of the defective condition that causedplaintiff's fall (see Smith v CostcoWholesale Corp., 50 AD3d 499, 500-501 [2008]). Defendant submitted, inter alia, thedeposition testimony of one of its employees who said that after plaintiff's fall he inspected thestairs and saw that they were dry. Defendant also submitted an affidavit from its porter at thetime of the accident, who stated that he did not mop the stairs on the morning of plaintiff's fall.
In opposition, plaintiff failed to raise a triable issue of fact. Plaintiff, who initially testifiedthat the cause of her fall was an unidentified wet condition of the stairs, submitted an affidavitstating that the stairs on which she slipped appeared to be recently mopped as they were wet andsoapy. She also submitted an affidavit from her brother-in-law, who said that shortly beforeplaintiff's fall he noticed the soapy condition of the stairs. These affidavits are insufficient todefeat defendant's motion, as they contradict plaintiff's deposition testimony and appear to betailored to avoid the consequences of her earlier testimony (see e.g. Telfeyan v City of New York, 40 AD3d 372, 373 [2007];Phillips v Bronx Lebanon Hosp., 268 AD2d 318, 320 [2000]). Furthermore, thesubmission of the brother-in-law's affidavit, a previously undisclosed notice witness, for the firsttime in opposition to the motion for summary judgment is improper (see Rodriguez v NewYork City Hous. Auth., 304 AD2d 468 [2003]).
We have considered plaintiff's remaining arguments, including that the motion court shouldnot have considered the porter's affidavit, and find them unavailing. Concur—Mazzarelli,J.P., Andrias, Friedman, Nardelli and Moskowitz, JJ.