Williams v. ATA Housing Corp.

Jun 6, 2005
Versions:19 A.D.3d 406
796 N.Y.S.2d 128

In an action to recover damages for personal injuries, the defendant ATA Housing Corp. appeals, as limited by its brief, from so much of an order of the Supreme Court, Kings County (Dabiri, J.), dated July 26, 2004, as denied its motion for summary judgment dismissing the complaint insofar as asserted against it and the defendant Esteem Patrol Service, Inc., separately appeals, as limited by its brief, from so much of the same order as denied its motion for the same relief.

Ordered that the order is reversed, on the law, with one bill of costs, the motions are granted, and the complaint is dismissed in its entirety.

The plaintiff alleged that he sustained injuries when he fell on an oily substance while walking down a stairway in the building where he resided.

Each defendant met its prima facie burden on its respective motion for summary judgment by presenting evidence in the form of the deposition testimony of the plaintiff and the building superintendent demonstrating that the defendants were not aware of any slippery condition on the stairway (see Concetto v Pedalino, 308 AD2d 470 [2003]).

In opposition, the plaintiff failed to raise a triable issue of fact. The only proof that the plaintiff submitted in opposition to the motions, an affidavit of a purported notice witness, was improperly considered by the Supreme Court in light of the plaintiff’s failure to properly disclose that witness in his discovery responses (see Concetto v Pedalino, supra). Schmidt, J.P., S. Miller, Krausman and Fisher, JJ., concur.