Rodriguez v. New York City Housing Authority

Apr 24, 2003
Versions:304 A.D.2d 468
758 N.Y.S.2d 53
2003 N.Y. App. Div. LEXIS 4242

Order, Supreme Court, Bronx County (Betty Owen Stinson, J.), entered January 30, 2002, which, in an action for personal injuries allegedly caused by hazards on a staircase in premises owned and operated by defendant, granted defendant’s motion for summary judgment dismissing the complaint, unanimously affirmed, without costs.

In support of its motion for summary judgment made after plaintiff had filed a note of issue, defendant submitted the affidavit of its supervisor of caretakers that no reports of liquid spills, debris or other hazards on the staircase were made for either the date of the accident or the previous day. Defendant also relied on plaintiff’s testimony at her 50-h hearing and examination before trial that she did not observe the alleged hazards on the staircase when she used it the previous afternoon and that she knew of no one who had observed the hazards prior to her fall. This testimony was consistent with plaintiffs response to a preliminary conference order directing the parties to exchange the names and addresses of all witnesses. Nevertheless, in opposition to the motion, plaintiff submitted the affidavit of a previously undisclosed building resident stating that she saw the alleged hazards on the staircase on each of the two days prior to the accident. The motion court properly refused to consider this affidavit. Plaintiff did not seek to vacate her note of issue and identifies no “unusual or unanticipated circumstances” warranting additional pretrial proceedings (22 NYCRR 202.21 [d]). In any event, the proffered affidavit “can only be considered to have been tailored to avoid the consequences of [plaintiffs] earlier testimony,” and, as such, fails to raise a genuine issue of fact as to notice (Perez v Bronx Park S. Assoc., 285 AD2d 402, 404 [2001], lv denied 97 NY2d 610 [2002]; see also Columbus Trust Co. v Campolo, 110 AD2d 616 [1985], affd 66 NY2d 701 [1985]). Concur — Buckley, P.J., Sullivan, Rosenberger, Wallach and Friedman, JJ.