Jimenez v. T.J. Maxx, Inc.

In an action to recover damages for personal injuries, the defendant appeals from an order of the Supreme Court, Suffolk County (Tanenbaum, J.), dated June 10, 2004, which denied its motion for summary judgment dismissing the complaint. Ordered that the order is reversed, on the law, with costs, the motion is granted, and the complaint is dismissed. The defendant made a prima facie showing of entitlement to judgment as a matter of law by demonstrating that it neither created the allegedly defective condition upon which the plaintiff claimed she slipped and fell, nor had actual or constructive notice of it (see Alvarez v Prospect Hosp., 68 NY2d 320 [1986]; Bynum v Salter, 14 AD3d 582 [2005]; Vera v Fishman, 14 AD3d 550 [2005]). In opposition thereto, the plaintiff failed to raise a triable issue of fact (see Alvarez v Prospect Hosp., supra). The affidavit she submitted in opposition to the motion raised feigned factual issues designed to avoid the consequences of her earlier deposition testimony (see Semple v Sterling Estates, 300 AD2d 297 [2002]; Regina v Friedman, 272 AD2d 461 [2000]). Accordingly, the Supreme Court should have granted the defendant’s motion for summary judgment dismissing the complaint. H. Miller, J.P., Cozier, Goldstein and Skelos, JJ., concur.