COATES v. BROOKLYN HOSPITAL CENTER (2025)

DECISION & ORDER

In an action to recover damages for personal injuries, the plaintiff appeals from a judgment of the Supreme Court, Kings County (Reginald A. Boddie, J.), dated November 5, 2020.  The judgment, upon an order of the same court dated March 12, 2020, granting the defendant's motion for summary judgment dismissing the complaint, is in favor of the defendant and against the plaintiff dismissing the complaint.

ORDERED that the judgment is affirmed, with costs.

The plaintiff commenced this action against the defendant to recover damages for personal injuries that she alleged she sustained when she tripped and fell on a defective sidewalk on or abutting the defendant's property.  After the completion of discovery, the defendant moved for summary judgment dismissing the complaint on the ground that the plaintiff could not identify the location or cause of her fall.  In an order dated March 12, 2020, the Supreme Court granted the motion.  Thereafter, a judgment dated November 5, 2020, was issued, upon the order, in favor of the defendant and against the plaintiff dismissing the complaint.  The plaintiff appeals.

To impose liability upon a defendant in possession of real property in a trip-and-fall action, there must be evidence that a dangerous or defective condition existed and that the defendant either created the condition or had actual or constructive notice of it and failed to remedy it within a reasonable time (see Barrett v. New York City Tr. Auth., 176 A.D.3d 909, 911, 111 N.Y.S.3d 615;  Julianne Oldham–Powers v. Longwood Cent. Sch. Dist., 123 A.D.3d 681, 681–682, 997 N.Y.S.2d 687).

Contrary to the plaintiff's contention, the defendant established its prima facie entitlement to judgment as a matter of law by submitting, inter alia, a transcript of the plaintiff's deposition testimony, which demonstrated that the plaintiff was unable to identify the location of her fall without engaging in speculation (see E.F. v. City of New York, 203 A.D.3d 887, 888, 165 N.Y.S.3d 558;  Singh v. City of New York, 136 A.D.3d 641, 642, 24 N.Y.S.3d 407).  In opposition, the plaintiff failed to raise a triable issue of fact.  The plaintiff's affidavit submitted in opposition to the motion merely raised a feigned issue of fact designed to avoid the consequences of her earlier deposition testimony and, thus, was insufficient to defeat summary judgment (see Mallen v. Dekalb Corp., 181 A.D.3d 669, 670, 121 N.Y.S.3d 331;  Bryant v. Loft Bookstore Cafe, LLC, 138 A.D.3d 664, 665–666, 27 N.Y.S.3d 876).

The plaintiff's remaining contention is without merit.

Accordingly, the Supreme Court properly granted the defendant's motion for summary judgment dismissing the complaint.

DUFFY, J.P., MILLER, WARHIT and LOVE, JJ., concur.