Opinion
2012-11-13
Janet MORRISSEY, Plaintiff–Appellant, v. NEW YORK CITY TRANSIT AUTHORITY, Defendant–Respondent.
Sim & Record, LLP, Bayside (Sang J. Sim of counsel), for appellant. Wallace D. Gossett, Brooklyn (Jane Shufer of counsel), for respondent.
Sim & Record, LLP, Bayside (Sang J. Sim of counsel), for appellant. Wallace D. Gossett, Brooklyn (Jane Shufer of counsel), for respondent.
Order, Supreme Court, New York County (Michael D. Stallman, J.), entered August 2, 2011, which granted defendant's motion for summary judgment dismissing the complaint, unanimously affirmed, without costs.
Defendant demonstrated its entitlement to summary judgment by submitting plaintiff's testimony establishing that she was unable to identify the cause of her injury and could only speculate as to the cause ( see Smith v. City of New York, 91 A.D.3d 456, 456–457, 936 N.Y.S.2d 178 [1st Dept. 2012] ). To the extent her affidavit in opposition to defendant's motion varies from her testimony at the 50–h hearing and deposition, it must be regarded as tailored to avoid the consequences of that earlier testimony, and is therefore insufficient*504to raise an issue of fact ( see Washington v. New York City Bd. of Educ., 93 A.D.3d 739, 740, 940 N.Y.S.2d 156 [2012] ).
As plaintiff's expert opinion is based on plaintiff's speculative testimony, it too is speculative and therefore insufficient to raise an issue of fact. Nor does the inconsistency regarding the heights of the risers on the stationary escalator raise the inference that defendant was negligent ( see Adamo v. National R.R. Passenger Corp., 71 A.D.3d 557, 558, 897 N.Y.S.2d 85 [1st Dept. 2010],lv. denied15 N.Y.3d 704, 907 N.Y.S.2d 752, 934 N.E.2d 321 [2010] ).
The doctrine of res ipsa loquitur is inapplicable to the facts of this case, since trips and falls are not the kinds of events that ordinarily occur absent someone's negligence ( see Smith, 91 A.D.3d at 457, 936 N.Y.S.2d 178).