Opinion
05-25-2016
Toba Faigi ACKERMAN, et al., appellants, v. Alex ISKHAKOV, et al., respondents.
Berman, Schulman & Levine, Brooklyn, NY (Aron F. Rattner and Jennifer Shafer of counsel), for appellants. Nicolini, Paradise, Ferretti & Sabella, Mineola, NY (Anthony J. Abruscati of counsel), for respondents.
Berman, Schulman & Levine, Brooklyn, NY (Aron F. Rattner and Jennifer Shafer of counsel), for appellants.
Nicolini, Paradise, Ferretti & Sabella, Mineola, NY (Anthony J. Abruscati of counsel), for respondents.
In an action to recover damages for personal injuries, the plaintiffs appeal from an order of the Supreme Court, Kings County (Bayne, J.), dated March 18, 2015, which granted the defendants' motion for summary judgment dismissing the complaint.
ORDERED that the order is affirmed, with costs.
The plaintiff Toba Faigi Ackerman (hereinafter the injured plaintiff) allegedly was injured when she tripped and fell while ascending the exterior cement front steps of the defendants' home. Thereafter, the injured plaintiff, and her husband suing derivatively, commenced this action against the defendants. After the completion of discovery, the defendants moved for summary judgment dismissing the complaint. The Supreme Court granted the motion.
The defendants established their prima facie entitlement to judgment as a matter of law by submitting, inter alia, a transcript of the injured plaintiff's deposition testimony, in which she was unable to identify the cause of her fall (see Williams v. Vines, 128 A.D.3d 1056, 10 N.Y.S.3d 311 ; Grossi v. Ralph Aievoli & Son, Inc., 125 A.D.3d 803, 804, 1 N.Y.S.3d 842 ; Peluso v. Red Rose Rest., Inc., 106 A.D.3d 972, 965 N.Y.S.2d 603 ). In opposition, the plaintiffs failed to raise a triable issue of fact (see Alvarez v. Prospect Hosp., 68 N.Y.2d 320, 324, 508 N.Y.S.2d 923, 501 N.E.2d 572 ). The injured plaintiff's affidavit, which was submitted in opposition to the motion, failed to raise a triable issue of fact since it presented what appear to be feigned issues of fact designed to avoid the consequences of her earlier deposition testimony (see Bryant v. Loft Bookstore Café, LLC, 138 A.D.3d 664, 27 N.Y.S.3d 876 ; Zhu v. Natale, 131 A.D.3d 607, 608, 15 N.Y.S.3d 204 ; Viviano v. KeyCorp, 128 A.D.3d 811, 812, 9 N.Y.S.3d 154 ). Accordingly, the Supreme Court properly granted the defendants' motion for summary judgment dismissing the complaint.
DILLON, J.P., CHAMBERS, BARROS and BRATHWAITE NELSON, JJ., concur.