Summary
In Garcia v. New York City Industrial Dev. Agency (279 A.D.2d 328), according to the record, plaintiff David Garcia, a truck driver, backed his 45-foot tractor-trailer into a building to make a delivery.
Summary of this case from Marcano v. the City of N.YOpinion
January 16, 2001.
Order, Supreme Court, Bronx County (Barry Salman, J.), entered on or about October 22, 1999, which granted defendants-respondents' motion for summary judgment dismissing the complaint as against them, unanimously affirmed, without costs.
The motion was properly granted in the absence of evidence rebutting defendants' prima facie showing that the allegedly dangerous condition that caused plaintiffs injuries was readily observable ( see, Serrano v. New York City Hous. Auth., 268 A.D.2d 230; Goslin v. La Mora, 137 A.D.2d 941). Plaintiff's claim in his affidavit in opposition that the danger was obscured by an optical illusion is an issue raised there for the first time, and is inconsistent with his deposition testimony ( cf., Kistoo v. City of New York, 195 A.D.2d 403, 404), and also without any expert or other support. Nor can plaintiff's failure to exercise ordinary attention and perception be excused by defendants' alleged failure to comply with an alleged industry practice that would have obviated the danger ( see, Garcia v. New York City Hous. Auth., 234 A.D.2d 102, 103, lv denied 91 N.Y.2d 804, citing, inter alia, Russell v. Archer Bldg. Ctrs., 219 A.D.2d 772).