Opinion
No. 410.
April 28, 2009.
Order, Supreme Court, New York County (Louis B. York, J.), entered March 26, 2008, which granted defendant's motion for summary judgment dismissing the complaint, unanimously affirmed, without costs.
Russo, Keane Toner, LLP, New York (Thomas F. Keane of counsel), for appellant.
Lester Schwab Katz Dwyer, LLP, New York (Harry Steinberg of counsel), for respondent.
Before: Saxe, J.P., Friedman, Moskowitz, Freedman and Richter, JJ.
Through the testimony of its vice-president of operations that he was aware of no complaint about the fence before it allegedly fell onto plaintiff and the statement of its treasurer that the company had no record of any similar incidents in the two years preceding plaintiffs accident, defendant, a general contractor that performed maintenance on the fence, established prima facie that it did not have notice of a defect in the fence ( see Marszalkiewicz v Waterside Plaza, LLC, 35 AD3d 176). Plaintiff failed to raise a triable issue of fact in that regard.
The motion court properly declined to consider the affidavit of a witness who had not been produced or identified before plaintiff submitted his papers in opposition to defendant's motion ( see Masucci-Matarazzo v Hoszowski, 291 AD2d 208). Plaintiffs affidavit submitted in opposition contradicted his deposition testimony and thus raised only a feigned issue of fact ( see Amaya v Denihan Ownership Co., LLC, 30 AD3d 327, 327-328).