Opinion
Appeal No. 15384 Index No. 302481/15ECase No. 2021-01359
02-24-2022
Esther Polanco, Plaintiff-Respondent, v. Paul Durgaj, Defendant-Appellant. Appeal No. 15384 No. 2021-01359
Miller Leiby & Associates, P.C., New York (Jeffrey R. Miller of counsel), for appellant. Martin L. Ginsberg, P.C., Woodbury (Martin L. Ginsberg of counsel), for respondent.
Miller Leiby & Associates, P.C., New York (Jeffrey R. Miller of counsel), for appellant.
Martin L. Ginsberg, P.C., Woodbury (Martin L. Ginsberg of counsel), for respondent.
Before: Webber, J.P., Kern, Moulton, González, Mendez, JJ.
Order, Supreme Court, Bronx County (Donald A. Miles, J.), entered on or about November 23, 2020, which, to the extent appealed from as limited by the briefs, granted plaintiff's motion to vacate a prior order granting defendant's unopposed motion for summary judgment, and upon vacatur, denied defendant's motion for summary judgment, unanimously reversed, on the law, without costs, and plaintiff's motion to vacate denied. The Clerk is directed to enter judgment dismissing the complaint.
In this action in which plaintiff sustained injuries when she slipped and fell on the sidewalk owned by defendant, her affidavit that she slipped on ice on the sidewalk contradicted her earlier deposition testimony that she did not know what she slipped on, and thus created only a feigned issue of fact, which was insufficient to defeat defendant's motion (see Mermelstein v East Winds Co., 136 A.D.3d 505, 505 [1st Dept 2016]; Telfeyan v City of New York, 40 A.D.3d 372, 373 [1st Dept 2007]).
Plaintiff's decision to walk on the outside of a shoveled path in front of the building that had been cleared of snow and ice was the sole proximate cause of her accident (see Anderson v Verizon N.Y., Inc., 190 A.D.3d 515 [1st Dept 2021]; Tzamarot v JP Morgan Chase & Co., 167 A.D.3d 550 [1st Dept 2018], lv denied 33 N.Y.3d 904 [2019]).