Opinion
15384 Index No. 302481/15E Case No.2021–01359
02-24-2022
Esther POLANCO, Plaintiff–Respondent, v. Paul DURGAJ, Defendant–Appellant.
Miller Leiby & Associates, P.C., New York (Jeffrey R. Miller of counsel), for appellant. Martin L. Ginsberg, P.C., Woodbury (Martin L. Ginsberg of counsel), for respondent.
Miller Leiby & Associates, P.C., New York (Jeffrey R. Miller of counsel), for appellant.
Martin L. Ginsberg, P.C., Woodbury (Martin L. Ginsberg of counsel), for respondent.
Webber, J.P., Kern, Moulton, Gonza´lez, Mendez, JJ.
Order, Supreme Court, Bronx County (Donald A. Miles, J.), entered on or about November 23, 2020, which, to the extent appealed from as limited by the briefs, granted plaintiff's motion to vacate a prior order granting defendant's unopposed motion for summary judgment, and upon vacatur, denied defendant's motion for summary judgment, unanimously reversed, on the law, without costs, and plaintiff's motion to vacate denied. The Clerk is directed to enter judgment dismissing the complaint.
In this action in which plaintiff sustained injuries when she slipped and fell on the sidewalk owned by defendant, her affidavit that she slipped on ice on the sidewalk contradicted her earlier deposition testimony that she did not know what she slipped on, and thus created only a feigned issue of fact, which was insufficient to defeat defendant's motion (see Mermelstein v. East Winds Co., 136 A.D.3d 505, 505, 24 N.Y.S.3d 643 [1st Dept. 2016] ; Telfeyan v. City of New York, 40 A.D.3d 372, 373, 836 N.Y.S.2d 71 [1st Dept. 2007] ).
Plaintiff's decision to walk on the outside of a shoveled path in front of the building that had been cleared of snow and ice was the sole proximate cause of her accident (see Anderson v. Verizon N.Y., Inc., 190 A.D.3d 515, 135 N.Y.S.3d 837 [1st Dept. 2021] ; Tzamarot v. JP Morgan Chase & Co., 167 A.D.3d 550, 88 N.Y.S.3d 870 [1st Dept. 2018], lv denied 33 N.Y.3d 904, 2019 WL 1998134 [2019] ).