LUNA v. CEC ENTERTAINMENT INC (2018)

Order, Supreme Court, Bronx County (Elizabeth A. Taylor, J.), entered July 14, 2016, which denied defendant's motion for summary judgment dismissing the complaint, unanimously reversed, on the law, without costs, and the motion granted.  The Clerk is directed to enter judgment accordingly.

Plaintiff alleges that, on October 2, 2011, she slipped and fell on a wet condition, on the steps of a ride, at a restaurant and entertainment facility owned and operated by defendant.

Defendant met its prima facie burden on the motion of establishing that it neither created the alleged wet condition nor had prior actual or constructive notice of it.  By plaintiff's own admission, the wet condition, which she never saw but assumes was there, could only have been created moments earlier, having not been present when she walked up the steps (see Rosario v. Haber, 146 A.D.3d 685, 45 N.Y.S.3d 462 [1st Dept. 2017];  Nepomuceno v. City of New York, 137 A.D.3d 646, 647, 28 N.Y.S.3d 51 [1st Dept. 2016];  Espinal v. New York City Hous. Auth., 215 A.D.2d 281, 281–282, 626 N.Y.S.2d 790 [1st Dept. 1995] ).

Based upon plaintiff's testimony that she was using both hands to carry her daughter down the steps when she fell, without any indication that she reached for a handrail, defendant established that the lack of a handrail did not proximately cause or contribute to the accident (see Pena v. Women's Outreach Network, Inc., 35 A.D.3d 104, 111, 824 N.Y.S.2d 3 [1st Dept. 2006];  Plowden v. Stevens Partners, LLC, 45 A.D.3d 659, 846 N.Y.S.2d 238 [2d Dept. 2007] ).

Plaintiff's affidavit in opposition, wherein she claimed that she tried to reach for a handrail when she fell, raised only feigned issues of fact, as it directly contradicted, and appears to have been tailored to avoid the consequence of, her earlier testimony (see Smith v. Costco Wholesale Corp., 50 A.D.3d 499, 501, 856 N.Y.S.2d 573 [1st Dept. 2008];  Telfeyan v. City of New York, 40 A.D.3d 372, 836 N.Y.S.2d 71 [1st Dept. 2007] ).

Pursuant to CPLR 3116(a), plaintiff's unsigned deposition transcript may be used as though fully signed, as defendant submitted proof that the certified transcript was provided to her attorneys for execution and not returned.  Moreover, an unsigned but certified transcript may be used as an admission (see Morchik v. Trinity School, 257 A.D.2d 534, 536, 684 N.Y.S.2d 534 [1st Dept. 1999] ), especially where, as here, there is no dispute as to the accuracy of the transcript (see Bennett v. Berger, 283 A.D.2d 374, 726 N.Y.S.2d 22 [1st Dept. 2001] ).