Opinion
1190, 152344/13.
05-19-2016
Cruz PERALTA–SANTOS, Plaintiff–Respondent, v. 350 WEST 49TH STREET CORP., et al., Defendants–Appellants.
Gannon, Rosenfarb & Drossman, New York (Lisa L. Gokhulsingh of counsel), for appellants. Pellegrini & Associates, LLC, New York (Joseph Sturcken of counsel), for respondent.
Gannon, Rosenfarb & Drossman, New York (Lisa L. Gokhulsingh of counsel), for appellants.
Pellegrini & Associates, LLC, New York (Joseph Sturcken of counsel), for respondent.
Opinion Order, Supreme Court, New York County (Joan M. Kenney, J.), entered January 5, 2016, which denied defendants' motion for summary judgment dismissing the complaint, unanimously reversed, on the law, without costs, and the motion granted. The Clerk is directed to enter judgment accordingly.
Defendants established their entitlement to judgment as a matter of law in this action where plaintiff alleges that he was injured when he fell down the stairs in defendants' building. Defendants submitted, inter alia, plaintiff's deposition testimony where he stated that while climbing the subject stairs, he suddenly felt dizzy and weak, heard the “noise of a paper,” and remembered nothing else until he later awoke in the hospital. He was twice asked whether he knew, or ever learned, what caused him to fall, and each time answered that he did not. Nowhere else in his testimony did plaintiff identify the cause of his fall (see Lee v. Ana Dev. Corp., 110 A.D.3d 479, 973 N.Y.S.2d 116 [1st Dept.2013] ).
In opposition, plaintiff failed to raise a triable issue of fact. His affidavit, where he claimed that he slipped and fell on paper restaurant menus strewn on defendants' stairs, was inadmissable, as plaintiff testified he neither spoke, read nor wrote in English, yet his affidavit was unaccompanied by a translator's affidavit attesting to its accuracy, as required by CPLR 2101(b) (see Eustaquio v. 860 Cortlandt Holdings, Inc., 95 A.D.3d 548, 944 N.Y.S.2d 78 [1st Dept.2012] ; Reyes v. Arco Wentworth Mgt. Corp., 83 A.D.3d 47, 54, 919 N.Y.S.2d 44 [2d Dept.2011] ). Furthermore, even if admissible, the affidavit raised only feigned issues of fact, as it contradicted plaintiff's deposition testimony, and was tailored to avoid the consequences of such testimony (see e.g. Phillips v. Bronx Lebanon Hosp., 268 A.D.2d 318, 320, 701 N.Y.S.2d 403 [1st Dept.2000] ). SWEENY, J.P., RENWICK, ANDRIAS, KAPNICK, KAHN, JJ., concur.