BONGIORNO v. PENSKE AUTOMOBILE CENTER

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Supreme Court, Appellate Division, Second Department, New York.

Joseph BONGIORNO, et al., Appellants, v. PENSKE AUTOMOBILE CENTER, Respondent.

Decided: December 31, 2001

GLORIA GOLDSTEIN, J.P., LEO F. McGINITY, HOWARD MILLER, and SANDRA L. TOWNES, JJ. Bruce G. Clark & Associates, P.C., New York, N.Y. (Peter L. Gale of counsel), for appellants. Lester Schwab Katz & Dwyer, LLP, New York, N.Y. (Denise A. Rubin and Steven B. Prystowsky of counsel), for respondent.

In an action to recover damages for personal injuries, etc., the plaintiffs appeal from an order of the Supreme Court, Richmond County (Sangiorgio, J.), dated September 5, 2000, which granted the defendant's motion for summary judgment dismissing the complaint.

ORDERED that the order is affirmed, with costs.

 In the present case, the defendant succeeded in demonstrating its entitlement to judgment as a matter of law by submitting evidence which showed that the plaintiffs were unable to identify the alleged dangerous condition which caused the accident (see, Alvarez v. Prospect Hosp., 68 N.Y.2d 320, 508 N.Y.S.2d 923, 501 N.E.2d 572).   At his examination before trial, the injured plaintiff testified that he could not identify what caused him to fall, nor did he observe any debris or hazards on the floor prior to his fall.

The affidavit of the injured plaintiff was insufficient to defeat the defendant's motion for summary judgment because it constituted an attempt to avoid the consequences of his earlier deposition testimony by raising feigned issues of fact (see, Barretta v. Trump Plaza Hotel and Casino, 278 A.D.2d 262, 717 N.Y.S.2d 333;  Bloom v. La Femme Fatale of Smithtown, 273 A.D.2d 187, 709 N.Y.S.2d 431;  Buziashvili v. Ryan, 264 A.D.2d 797, 695 N.Y.S.2d 396;  Wright v. South Nassau Communities Hosp., 254 A.D.2d 277, 678 N.Y.S.2d 636;  Califano v. Campaniello, 243 A.D.2d 528, 663 N.Y.S.2d 102;  Prunty v. Keltie's Bum Steer, 163 A.D.2d 595, 559 N.Y.S.2d 354).

 In any event, even if the plaintiffs identified the alleged dangerous condition, the defendant would still be entitled to summary judgment because it demonstrated that it did not create any hazardous condition, or have actual notice or constructive notice of its existence (see, Piacquadio v. Recine Realty Corp., 84 N.Y.2d 967, 622 N.Y.S.2d 493, 646 N.E.2d 795;  Gordon v. American Museum of Natural History, 67 N.Y.2d 836, 501 N.Y.S.2d 646, 492 N.E.2d 774;  Dwoskin v. Burger King Corp., 249 A.D.2d 358, 671 N.Y.S.2d 494;  Goldman v. Waldbaum Inc., 248 A.D.2d 436, 669 N.Y.S.2d 669;  Bradish v. Tank Tech Corp., 216 A.D.2d 505, 628 N.Y.S.2d 807).

There was no evidence that anyone, including the plaintiff, saw anything on the floor where the accident occurred, nor is there any evidence that the alleged condition existed for any length of time prior to the accident to permit the defendant's employees to discover and remedy it (see, Gordon v. American Museum of Natural History, supra, at 837, 501 N.Y.S.2d 646, 492 N.E.2d 774).

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