Opinion
12941 Index No. 20904/17E Case No. 2020-02865
01-21-2021
Lashawn DIXON, Plaintiff–Respondent, v. SUM REALTY, CO., Defendant–Appellant.
Fleischner Potash LLP, White Plains (Robert Michael Drucker of counsel), for appellant. John E. Gray, New York (Jason Levine of counsel), for respondent.
Fleischner Potash LLP, White Plains (Robert Michael Drucker of counsel), for appellant.
John E. Gray, New York (Jason Levine of counsel), for respondent.
Renwick, J.P., Manzanet–Daniels, Kapnick, Kern, Kennedy, JJ.
Order, Supreme Court, Bronx County (George J. Silver, J.), entered June 10, 2020, which denied defendant's motion for summary judgment dismissing the complaint, unanimously modified, on the law, to grant the motion as to the claim related to the handrails of the subject staircase, and otherwise affirmed, without costs.
While plaintiff's initial deposition testimony was later contradicted by the affidavit she submitted in opposition to defendant's motion, after a break in the deposition, she testified that she had misspoken, and changed her testimony significantly as to how her fall on defendant's staircase occurred. Plaintiff's latter version of the accident is, in the main, consistent with her affidavit. Thus, while the change of testimony mid-deposition presents an issue of credibility for the jury, the affidavit does not present the kind of feigned issue of fact that requires the court to disregard the affidavit (compare Telfeyan v. City of New York, 40 A.D.3d 372, 373, 836 N.Y.S.2d 71 [1st Dept. 2007] [affidavit prepared for litigation that directly contradicts affiant's previous deposition testimony without explanation insufficient to defeat summary judgment]; Beahn v. New York Yankees Partnership, 89 A.D.3d 589, 934 N.Y.S.2d 7 [1st Dept. 2011] ; Matas v. Clark & Wilkins Indus., Inc., 61 A.D.3d 582, 877 N.Y.S.2d 314 [1st Dept. 2009], lv denied 13 N.Y.3d 703, 2009 WL 2779253 [2009] ). Since plaintiff's expert relied upon the version of the accident described in plaintiff's affidavit, his affidavit was properly considered (compare Amaya v. Denihan Ownership Co., LLC, 30 A.D.3d 327, 818 N.Y.S.2d 199 [1st Dept. 2006] [plaintiff's expert affidavit unsupported by evidence and plaintiff's affidavit tailored to dovetail with expert affidavit and to avoid consequences of deposition testimony properly rejected]; Vilomar v. 490 E. 181st St. Hous. Dev. Fund Corp., 50 A.D.3d 469, 858 N.Y.S.2d 10 [1st Dept. 2008] [plaintiff's companion's affidavit properly rejected as tailored to avoid consequences of plaintiff's deposition testimony] ). Plaintiff's inability to identify uneven riser heights as the cause of her fall is not fatal to her claim, as her post-break deposition testimony permits the inference that her fall was caused by uneven riser heights (see e.g. Berr v. Grant, 149 A.D.3d 536, 52 N.Y.S.3d 352 [1st Dept. 2017] ; see also Tomaino v. 209 E. 84th St. Corp., 72 A.D.3d 460, 900 N.Y.S.2d 245 [1st Dept. 2010] ).
However, plaintiff's affidavit presents a feigned issue of fact as to whether her fall was caused by any defect of the staircase handrails and must be disregarded with respect thereto (see Fernandez v. VLA Realty, LLC, 45 A.D.3d 391, 845 N.Y.S.2d 304 [1st Dept. 2007] ; Pippo v. City of New York, 43 A.D.3d 303, 304, 842 N.Y.S.2d 367 [1st Dept. 2007] ). Plaintiff testified consistently through the entirety of her deposition that she was not holding the handrail, that it was her custom and practice not to use handrails on short flights of steps, and that at no time during her fall did she attempt, or even think of attempting, to put her hand on the handrail.