Opinion
3907.
Decided June 15, 2004.
Order, Supreme Court, New York County (Robert D. Lippmann, J.), entered October 24, 2003, which, to the extent appealed from as limited by the briefs, granted cross motions by the municipal and Transit Authority defendants for summary judgment dismissing the complaint and all cross claims against them, unanimously affirmed, without costs.
Greenberg, Greenberg Guerrero, LLP, New York (David Morisset of counsel), for appellant.
Wallace D. Gossett, Brooklyn (Lawrence A. Silver of counsel), for Manhattan and Bronx Surface Transit Operating Authority, respondent.
Michael A. Cardozo, Corporation Counsel, New York (Ralph Janzen of counsel), for The City of New York, respondent.
Before: Tom, J.P., Saxe, Ellerin, Marlow, Catterson, JJ.
Plaintiff fell when she got off a bus, but could not identify the cause of the accident. In her deposition testimony, she offered various possibilities, including a crack in the curb or a hole where the sidewalk had been torn up. This speculation did not create a factual issue warranting trial ( Thomas v. Our Lady of Mercy Med. Ctr., 289 A.D.2d 37, 38). Although plaintiff contends that her affidavit in opposition, citing a cracked curb as the cause, clarifies her testimony, the affidavit was clearly submitted to avoid the consequences of her earlier testimony, and is thus insufficient to defeat summary judgment ( Phillips v. Bronx Lebanon Hosp., 268 A.D.2d 318, 320).
We have considered plaintiff's remaining arguments and find them to be without merit.
THIS CONSTITUTES THE DECISION AND ORDER OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.