KATZ v. Ditmas Management Corp., et al., appellants.

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

Nodar KATZ, et al., respondents, v. SEMINOLE REALTY CORP., et al., defendants, Ditmas Management Corp., et al., appellants.

Decided: August 09, 2004

FRED T. SANTUCCI, J.P., GLORIA GOLDSTEIN, DANIEL F. LUCIANO, and WILLIAM F. MASTRO, JJ. Vincent D. McNamara, East Norwich, N.Y. (Anthony Marino of counsel), for appellants. Dalli & Marino (Pollack, Pollack, Isaac & De Cicco, New York, N.Y. [Brian J. Isaac and Christopher J. Crawford] of counsel), for respondents.

In an action to recover damages for personal injuries, etc., the defendants Ditmas Management Corp. and Seminole Realty Co., appeal from an order of the Supreme Court, Kings County (Martin, J.), dated January 13, 2004, which denied their motion for summary judgment dismissing the complaint insofar as asserted against them.

ORDERED that the order is reversed, on the law, with costs, the motion is granted, and the complaint is dismissed insofar as asserted against them.

 The injured plaintiff alleged that he slipped and fell due to the presence of water on a staircase located in a building owned by the defendant Seminole Realty Co., and managed by the defendant Ditmas Management Corp. To impose liability upon a defendant in a slip-and-fall case, there must be evidence tending to show the existence of a dangerous condition and that the defendant either created the defect or had actual or constructive notice of it (see Gordon v. American Museum of Natural History, 67 N.Y.2d 836, 501 N.Y.S.2d 646, 492 N.E.2d 774;  Sadowsky v. 2175 Wantagh Ave. Corp., 281 A.D.2d 407, 721 N.Y.S.2d 665;  King v. New York City Tr. Auth., 266 A.D.2d 354, 698 N.Y.S.2d 328 Patrick v. Cho's Fruit & Vegetables, 248 A.D.2d 692, 671 N.Y.S.2d 274).   The appellants established their prima facie entitlement to judgment as a matter of law by demonstrating that they neither had notice of the condition complained of nor created it (see Manzione v. Wal-Mart Stores, 295 A.D.2d 484, 744 N.Y.S.2d 466).   In opposition, the plaintiffs failed to raise a triable issue of fact.   The affidavit of the injured plaintiff submitted in opposition to the motion constituted an attempt to avoid the consequences of his earlier deposition testimony by raising feigned issues of fact with respect to the issue of notice, and thus, it was insufficient to defeat the motion for summary judgment (see Krohn v. Melanson, 298 A.D.2d 510, 748 N.Y.S.2d 658;  Raisner v. City of New York, 272 A.D.2d 460, 707 N.Y.S.2d 498, Garvin v. Rosenberg, 204 A.D.2d 388, 614 N.Y.S.2d 190).

Accordingly, the Supreme Court should have granted the appellants' motion for summary judgment dismissing the complaint insofar as asserted against them (see generally Alvarez v. Prospect Hosp., 68 N.Y.2d 320, 508 N.Y.S.2d 923, 501 N.E.2d 572).

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