Opinion
03-24-2017
John MANN, Sr., Plaintiff–Respondent, v. AUTOZONE NORTHEAST, INC., Defendant–Appellant.
Goldberg Segalla LLP, Buffalo (Meghan M. Brown of Counsel), for Defendant–Appellant. Philip A. Milch, Buffalo, for Plaintiff–Respondent.
Goldberg Segalla LLP, Buffalo (Meghan M. Brown of Counsel), for Defendant–Appellant.
Philip A. Milch, Buffalo, for Plaintiff–Respondent.
PRESENT: PERADOTTO, J.P., LINDLEY, DeJOSEPH, NEMOYER, AND TROUTMAN, JJ.
MEMORANDUM:
Plaintiff commenced this action seeking damages for injuries he sustained when he allegedly slipped and fell on ice and snow on a sidewalk in front of a store owned by defendant. On appeal, defendant contends that Supreme Court erred in denying its motion for summary judgment seeking dismissal of the complaint. We agree.
Defendant met its initial burden by establishing that "there was no dangerous or defective condition on the sidewalk at the location where the plaintiff fell" (DiStefano v. Ulta Salon, 95 A.D.3d 932, 932, 943 N.Y.S.2d 618 ). Defendant's submissions, including the deposition testimony of plaintiff and the store manager, and photographs of the scene taken immediately following plaintiff's fall, established that there was no ice or snow on the curb of the sidewalk where plaintiff claimed to have slipped while stepping up with his left foot. Contrary to plaintiff's contention, his deposition testimony does not indicate that his right foot slipped on any purported ice or snow in the lower area of the parking lot abutting the curb. Indeed, viewing the evidence in the light most favorable to plaintiff in the context of defendant's motion for summary judgment (see Branham v. Loews Orpheum Cinemas, Inc., 8 N.Y.3d 931, 932, 834 N.Y.S.2d 503, 866 N.E.2d 448 ), we conclude that plaintiff unequivocally testified that only his left foot slipped on the curb and that his right foot was stable on the ground in the lower area at the moment of his fall. We further conclude that plaintiff failed to raise a triable issue of fact in opposition. Plaintiff's opposing affidavit regarding the nature of his fall and the condition of the sidewalk contradicts his prior deposition testimony, and thus "its submission ‘constitutes an attempt to raise feigned issues of fact where none truly exists' " ( Alati v. Divin Bldrs., Inc., 137 A.D.3d 1577, 1579, 27 N.Y.S.3d 747 ; see Telfeyan v. City of New York, 40 A.D.3d 372, 373, 836 N.Y.S.2d 71 ).
It is hereby ORDERED that the order so appealed from is unanimously reversed on the law without costs, the motion is granted, and the complaint is dismissed.