GARCIA MARTINEZ v. New York City Transit Authority, et al., Defendants-Respondents. (2009)

Order, Supreme Court, New York County (Donna M. Mills, J.), entered on or about June 18, 2008, to the extent it granted the motion of defendants New York City Transit Authority and Manhattan and Bronx Surface Transit Operating Authority for summary judgment dismissing the complaint as against them, unanimously affirmed, without costs.   Appeal from that portion of the order that denied defendant 1873 Amsterdam Realty Corp.'s motion for summary judgment dismissing the complaint as against it unanimously dismissed, without costs, for failure to perfect in accordance with this Court's order entered June 18, 2009 (M-1928).

 Defendants established prima facie, through plaintiff's deposition testimony, that they did not breach their duty as common carriers to provide a safe place for bus passengers to disembark (see Malawer v. New York City Tr. Auth., 18 A.D.3d 293, 294-295, 795 N.Y.S.2d 201 [2005], affd. 6 N.Y.3d 800, 812 N.Y.S.2d 438, 845 N.E.2d 1268 [2006];  Blye v. Manhattan & Bronx Surface Tr. Operating Auth., 124 A.D.2d 106, 109, 511 N.Y.S.2d 612 [1987], affd. 72 N.Y.2d 888, 532 N.Y.S.2d 752, 528 N.E.2d 1225 [1988] ).   Plaintiff testified that she was discharged at a designated bus stop, directly in front of a cleared path, which had a patch of ice on it, leading to the sidewalk, and that she had safely exited the bus before she fell on the sidewalk.

 Plaintiff's affidavit in opposition, stating that the entire path to the sidewalk was covered with ice, which therefore was impossible to avoid, contradicted her deposition testimony describing a narrower patch of ice in the middle of the three-foot-wide pathway, and thus created only a feigned issue of fact insufficient to defeat defendants' motion (see Pippo v. City of New York, 43 A.D.3d 303, 304, 842 N.Y.S.2d 367 [2007];  Telfeyan v. City of New York, 40 A.D.3d 372, 836 N.Y.S.2d 71 [2007] ).