Opinion
April 17, 1995
Appeal from the Supreme Court, Kings County (Jackson, J.).
Ordered that the order is reversed, on the law, with costs, the motion is granted, the complaint is dismissed insofar as it is asserted against the defendant Theresa Z. Stavisky, the cross claim is dismissed, and the action against the remaining defendant is severed.
The record indicates that the plaintiff Eileen Miller slipped and fell on an accumulation of ice and snow on a municipal sidewalk in front of a building owned by the appellant. The plaintiff's own deposition testimony was that there was no indication that the sidewalk had been shoveled. Therefore, having failed to submit any evidence that the appellant made the condition on the sidewalk more hazardous, the plaintiffs failed to prove a prima facie case of negligence and the appellant was entitled to judgment as a matter of law (see, Stewart v Yeshiva Nachlas Haleviym, 186 A.D.2d 731, 731-732; Oley v Village of Massapequa Park, 198 A.D.2d 272). In opposition to the motion for summary judgment, the plaintiffs submitted an affidavit of the plaintiff Eileen Miller stating that the sidewalk had indeed been shoveled. We find this belated assertion to be merely an attempt to avoid the consequences of dismissal by raising a feigned factual issue (see, Garvin v Rosenberg, 204 A.D.2d 388). Such a submission is insufficient to defeat the motion for summary judgment. Balletta, J.P., Thompson, Santucci, Altman and Hart, JJ., concur.