Opinion
August 30, 1999.
Appeal from the Supreme Court, Nassau County (Winick, J.).
Ordered that the order is reversed, on the law and as a matter of discretion, the motion for leave to renew is denied, and the order dated May 6, 1998, is reinstated.
At her deposition, the plaintiff admitted that she had been "guessing" when she had given certain, prior equivocal testimony as to whether a certain photograph, taken by her sister shortly after the incident and identified as Defendant's Exhibit A, showed the defective condition which had allegedly caused her to trip and fall. From the remainder of the plaintiffs deposition testimony, it is clear that she cannot state without guesswork exactly what condition caused her to trip and fall, and cannot describe in any meaningful way the dimensions or nature of that condition. The Supreme Court correctly granted the defendants' motion for summary judgment on this basis.
The Supreme Court erred in granting the plaintiffs motion for leave to renew the defendants' prior motion for summary judgment. The Supreme Court relied on an affidavit submitted by the plaintiffs sister which averred that the plaintiff could identify the "particular hole" which caused the accident and that "such hole is the one as portrayed in Defendant's Exhibit A". The hearsay declaration made by the plaintiff recounted in this affidavit, which appears to contradict the plaintiffs own deposition testimony, and which is unaccompanied by any claim that the. plaintiff is herself unavailable, does not constitute valid evidence sufficient to defeat a motion for summary judgment ( see, e.g., Olmedo v. Port Auth., 256 A.D.2d 319; Siagkris v. K E Mech., 248 A.D.2d 458; Fontana v. Fortunoff 246 A.D.2d 626; Skay v. Public Lib., 238 A.D.2d 397; see also, Pino v. Korn, 248 A.D.2d 520; Leale v. New York City Health Hosps. Corp., 222 A.D.2d 414).
Bracken, J. P., Goldstein, McGinity and Schmidt, JJ., concur.