GARCIA v. [And A Third-Party Action.] (2001)

Order, Supreme Court, Bronx County (Barry Salman, J.), entered on or about October 22, 1999, which granted defendants-respondents' motion for summary judgment dismissing the complaint as against them, unanimously affirmed, without costs.

The motion was properly granted in the absence of evidence rebutting defendants' prima facie showing that the allegedly dangerous condition that caused plaintiff's injuries was readily observable (see, Serrano v. New York City Hous. Auth., 268 A.D.2d 230, 701 N.Y.S.2d 35;  Goslin v. La Mora, 137 A.D.2d 941, 525 N.Y.S.2d 66).   Plaintiff's claim in his affidavit in opposition that the danger was obscured by an optical illusion is an issue raised there for the first time, and is inconsistent with his deposition testimony (cf., Kistoo v. City of New York, 195 A.D.2d 403, 404, 600 N.Y.S.2d 693), and also without any expert or other support.   Nor can plaintiff's failure to exercise ordinary attention and perception be excused by defendants' alleged failure to comply with an alleged industry practice that would have obviated the danger (see, Garcia v. New York City Hous. Auth., 234 A.D.2d 102, 103, 650 N.Y.S.2d 715, lv. denied 91 N.Y.2d 804, 668 N.Y.S.2d 559, 691 N.E.2d 631, citing, inter alia, Russell v. Archer Bldg. Ctrs., 219 A.D.2d 772, 631 N.Y.S.2d 102).

MEMORANDUM DECISION.