Opinion
2014-07-3
Delores COVINGTON, Plaintiff–Appellant, v. The CITY OF NEW YORK, et al., Defendants–Respondents.
Raymond Schwartzberg & Associates, PLLC, New York (Raymond B. Schwartzberg of counsel), for appellant. Zachary W. Carter, Corporation Counsel, New York (Randy E. Kleinman of counsel), for municipal respondent.
Raymond Schwartzberg & Associates, PLLC, New York (Raymond B. Schwartzberg of counsel), for appellant. Zachary W. Carter, Corporation Counsel, New York (Randy E. Kleinman of counsel), for municipal respondent.
Carroll McNulty & Kull LLC, New York (Frank J. Wenick of counsel), for Bronx Lebanon Hospital Center, respondent.
Order, Supreme Court, Bronx County (Larry S. Schachner, J.), entered November 13, 2012, which granted defendants' motions for summary judgment dismissing the complaint, unanimously affirmed, without costs.
Defendants each demonstrated entitlement to judgment as a matter of law in this action where plaintiff allegedly tripped and fell on a sidewalk defect. Defendant City submitted evidence showing that it had no written notice of the alleged defect ( see Administrative Code of City of N.Y. § 7–201[c]; Castro v. City of New York, 101 A.D.3d 573, 955 N.Y.S.2d 512 [1st Dept.2012] ), and defendant hospital demonstrated that it was a lessee, and not the owner of the premises in front of which plaintiff allegedly fell ( see Tucciarone v. Windsor Owners Corp., 306 A.D.2d 162, 163, 761 N.Y.S.2d 181 [1st Dept.2003] ).
In opposition, plaintiff failed to raise a triable issue of fact. To the extent that her affidavit contradicted her prior testimony as to the defect, it was clearly tailored to avoid the consequences of her earlier testimony and was properly disregarded by the motion court ( see e.g. Sutin v. Manhattan & Bronx Surface Tr. Operating Auth., 54 A.D.3d 616, 864 N.Y.S.2d 411 [1st Dept.2008];see also Addo v. Melnick, 61 A.D.3d 453, 877 N.Y.S.2d 261 [1st Dept.2009] ).
We have considered plaintiff's remaining contentions and find them unavailing. GONZALEZ, P.J., ACOSTA, DeGRASSE, FREEDMAN, RICHTER, JJ., concur.