Opinion
2012-07-25
Victoria CUEBAS, et al., respondents, v. CITY OF YONKERS, appellant.
Edward P. Dunphy, Corporation Counsel, Yonkers, N.Y. (Michael Levinson of counsel), for appellant. Solomon Rosengarten, Brooklyn, N.Y., for respondents.
Edward P. Dunphy, Corporation Counsel, Yonkers, N.Y. (Michael Levinson of counsel), for appellant. Solomon Rosengarten, Brooklyn, N.Y., for respondents.
RUTH C. BALKIN, J.P., L. PRISCILLA HALL, PLUMMER E. LOTT, and JEFFREY A. COHEN, JJ.
In an action to recover damages for personal injuries, etc., the defendant appeals from so much of an order of the Supreme Court, Westchester County (Lefkowitz, J.), entered January 18, 2012, as denied its motion for summary judgment dismissing the complaint.
ORDERED that the order is reversed insofar as appealed from, on the law, with costs, and the defendant's motion for summary judgment dismissing the complaint is granted.
The defendant demonstrated its prima facie entitlement to judgment as a matter of law since it demonstrated that it did not receive prior written notice of the icy condition complained of in the roadway where the injured plaintiff fell, as required by the Charter of the City of Yonkers § C24–11 ( see Pena v. City of Yonkers, 82 A.D.3d 728, 917 N.Y.S.2d 903), and that it did not create the dangerous condition through an affirmative act of negligence ( cf. Braver v. Village of Cedarhurst, 94 A.D.3d 933, 942 N.Y.S.2d 178).
In opposition, the plaintiffs failed to raise a triable issue of fact ( see Amabile v. City of Buffalo, 93 N.Y.2d 471, 693 N.Y.S.2d 77, 715 N.E.2d 104;Lichtman v. Village of Kiryas Joel, 90 A.D.3d 1001, 935 N.Y.S.2d 331). The injured plaintiff's affidavit, submitted in opposition, presented feigned issues of fact designed to avoid the consequences of her earlier testimony, taken pursuant to General Municipal Law § 50–h, and thus was insufficient to defeat the defendant's motion ( see Hunt v. Meyers, 63 A.D.3d 685, 685–686, 879 N.Y.S.2d 725). Accordingly, the Supreme Court should have granted the defendant's motion for summary judgment dismissing the complaint.