Opinion
2014-06-10
Edwin ALAMO, Plaintiff–Respondent, v. NEW YORK CITY HOUSING AUTHORITY, Defendant–Appellant.
Cullen and Dykman LLP, New York (Joseph C. Fegan of counsel), for appellant. Hill & Moin, LLP, New York (Cheryl R. Eisberg Moin of counsel), for respondent.
Cullen and Dykman LLP, New York (Joseph C. Fegan of counsel), for appellant. Hill & Moin, LLP, New York (Cheryl R. Eisberg Moin of counsel), for respondent.
Order, Supreme Court, Bronx County (Lucindo Suarez, J.), entered November 4, 2013, which denied defendant's motion for summary judgment dismissing the complaint, unanimously reversed, on the law, without costs, and the motion granted. The Clerk is directed to enter judgment accordingly.
Defendant established its entitlement to judgment as a matter of law in this action where plaintiff was injured when he fell as he descended the interior stairs of defendant's building. Defendant submitted evidence showing that it did not have notice of the allegedly hazardous condition upon which plaintiff slipped. Defendant's caretaker testified that pursuant to a schedule, the stairwell was cleaned twice daily, including on the day of the accident, and that no unusual conditions were found ( see Pfeuffer v. New York City Hous. Auth., 93 A.D.3d 470, 471–472, 940 N.Y.S.2d 566 [1st Dept.2012];compare Williams v. New York City Hous. Auth., 99 A.D.3d 613, 952 N.Y.S.2d 554 [1st Dept.2012] ).
In opposition, plaintiff failed to raise a triable issue of fact as to whether defendant had notice of a dangerous recurring condition that was routinely left unaddressed by defendant ( see DeJesus v. New York City Hous. Auth., 53 A.D.3d 410, 861 N.Y.S.2d 31 [1st Dept.2008],affd.11 N.Y.3d 889, 873 N.Y.S.2d 259, 901 N.E.2d 752 [2008] ). The affidavits of plaintiff's brother and mother are not considered, as the brother's affidavit contradicts his prior sworn testimony ( see Paucar v. Solaro, 111 A.D.3d 569, 975 N.Y.S.2d 658 [1st Dept.2013] ), and the mother's name was not provided in responses to discovery and was disclosed only in plaintiff's opposition papers ( see Ravagnan v. One Ninety Realty Co., 64 A.D.3d 481, 883 N.Y.S.2d 490 [1st Dept.2009] ). Furthermore, the affidavits, even if considered, do not raise triable issues of fact to defeat defendant's prima facie showing. TOM, J.P., FRIEDMAN, RENWICK, GISCHE, CLARK, JJ., concur.