From Casetext: Smarter Legal Research

Regina v. Friedman

Appellate Division of the Supreme Court of New York, Second Department
May 15, 2000
272 A.D.2d 461 (N.Y. App. Div. 2000)

Opinion

Submitted April 5, 2000.

May 15, 2000.

In an action to recover damages for personal injuries, etc., the plaintiffs appeal from so much of an order of the Supreme Court, Nassau County (O'Connell, J.), dated July 7, 1999, as granted the cross motion of the defendant Marcia Friedman, as executor of the estate of Ethel Goldstein, for summary judgment dismissing the complaint insofar as asserted against her.

Stangler, Edelman Binder, Carle Place, N.Y. (William T. Jaye of counsel), for appellants.

Michael F.X. Manning, Garden City, N.Y. (John P. Humphreys of counsel), for respondent.

LAWRENCE J. BRACKEN, J.P., DANIEL W. JOY, WILLIAM C. THOMPSON, GLORIA GOLDSTEIN, SANDRA J. FEUERSTEIN, JJ.


DECISION ORDER

ORDERED that the order is affirmed insofar as appealed from, with costs.

The plaintiff Betty Regina (hereinafter the injured plaintiff) alleged that on January 8, 1996, she slipped and fell in a parking lot owned by the decedent Ethel Goldstein. At her examination before trial, the injured plaintiff testified that she did not see what caused her to fall. She testified that she noticed snow in the area where she had fallen after she got up and that there was ice in the area where she fell. She did not notice any depressions in the ground in the area where she fell. In her affidavit in opposition to the respondent's cross motion for summary judgment dismissing the complaint insofar as asserted against her, the injured plaintiff averred that she "fell on a patch of ice contained within a pothole".

The plaintiffs argue that they raised an issue of fact as to the cause of the injured plaintiff's fall. However, the self-serving affidavit submitted by the injured plaintiff presented a feigned factual issue designed to avoid the consequences of her earlier admission that she did not notice any depressions or potholes in the area where she fell (see, Buziashvili v. Ryan, 264 A.D.2d 797; Prunty v. Keltie's Bum Steer, 163 N.Y.2d 595, 596).

The plaintiffs' remaining contention, that the injured plaintiff could not have slipped on falling snow because she fell in an area which was protected by an overhang, is dehors the record. Appellate review is limited to the record made on the motion and, absent matters that may be judicially noticed, new facts may not be injected at the appellate level (see, Broida v. Bancroft, 103 A.D.2d 88). Thus, the injured plaintiff's conclusion that she could not have slipped on snow because of the overhang is not supported by any evidentiary basis (see, C.D. Parry v. Nichter, 244 A.D.2d 444, 445).

Accordingly, the Supreme Court properly dismissed the complaint insofar as asserted against the respondent.

BRACKEN, J.P., JOY, THOMPSON, GOLDSTEIN and FEUERSTEIN, JJ., concur.


Summaries of

Regina v. Friedman

Appellate Division of the Supreme Court of New York, Second Department
May 15, 2000
272 A.D.2d 461 (N.Y. App. Div. 2000)
Case details for

Regina v. Friedman

Case Details

Full title:BETTY REGINA, et al., appellants, v. MARCIA FRIEDMAN, etc., respondent, et…

Court:Appellate Division of the Supreme Court of New York, Second Department

Date published: May 15, 2000

Citations

272 A.D.2d 461 (N.Y. App. Div. 2000)
707 N.Y.S.2d 674

Citing Cases

Walker v. New York

To avoid the consequences of this failure, plaintiff asserts that we should take judicial notice of the…

Shpak v. New York City Transit Auth

The notice of claim alleged that the plaintiff fell "on West 6th Street and Shell Road" in Brooklyn. Contrary…