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Marcelle v. New York City Transit Auth

Appellate Division of the Supreme Court of New York, Second Department
Dec 24, 2001
289 A.D.2d 459 (N.Y. App. Div. 2001)

Opinion

2000-10733

Argued December 7, 2001.

December 24, 2001.

In an action to recover damages for personal injuries, etc., the plaintiffs appeal from an order of the Supreme Court, Kings County (Bruno, J.), dated October 18, 2000, which granted the defendant's motion for summary judgment dismissing the complaint.

Michael A. Forzano, Brooklyn, N.Y., for appellants.

Wallace D. Gossett, Brooklyn, N.Y. (Anita Isola of counsel), for respondent.

Before: CORNELIUS J. O'BRIEN, J.P., FRED T. SANTUCCI, ANITA R. FLORIO, ROBERT W. SCHMIDT, JJ.


ORDERED that the order is affirmed, with costs.

The defendant established its prima facie entitlement to summary judgment dismissing the complaint as the plaintiffs' deposition testimony failed to show that there was an unsafe condition on the stairs which was created by the defendant or of which it had actual or constructive notice (see, Marku v. 33 S P Realty Corp., 251 A.D.2d 633). In opposition, the plaintiffs submitted self-serving affidavits in an effort to show that the stairs where the injured plaintiff fell were covered with a soapy, slimy substance. These affidavits contradicted the plaintiffs' earlier deposition testimony. Thus, they presented a feigned factual issue designed to avoid the consequences of their earlier statements that the steps were merely damp and wet, and were insufficient to show the existence of a triable issue of fact (see, Nieves v. ISS Cleaning Servs. Group, 284 A.D.2d 441; Phillips v. Bronx Lebanon Hosp., 268 A.D.2d 318; Buziashvili v. Ryan, 264 A.D.2d 797; Prunty v. Keltie's Bum Steer, 163 A.D.2d 595).

The plaintiffs' remaining contention is without merit.

O'BRIEN, J.P., SANTUCCI, FLORIO and SCHMIDT, JJ., concur.


Summaries of

Marcelle v. New York City Transit Auth

Appellate Division of the Supreme Court of New York, Second Department
Dec 24, 2001
289 A.D.2d 459 (N.Y. App. Div. 2001)
Case details for

Marcelle v. New York City Transit Auth

Case Details

Full title:EMMA MARCELLE, ET AL., APPELLANTS, v. NEW YORK CITY TRANSIT AUTHORITY…

Court:Appellate Division of the Supreme Court of New York, Second Department

Date published: Dec 24, 2001

Citations

289 A.D.2d 459 (N.Y. App. Div. 2001)
735 N.Y.S.2d 580

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