Cuebas v. City of Yonkers

780 The defendant demonstrated its prima facie entitlement to judgment as a matter of law since it demonstrated that it did not receive prior written notice of the icy condition complained of in the roadway where the injured plaintiff fell, as required by the Charter of the City of Yonkers § C24-11 (see Pena v City of Yonkers, 82 AD3d 728 [2011]), and that it did not create the dangerous condition through an affirmative act of negligence (cf. Braver v Village of Cedarhurst, 94 AD3d 933 [2012]). In opposition, the plaintiffs failed to raise a triable issue of fact (see Amabile v City of Buffalo, 93 NY2d 471 [1999]; Lichtman v Village of Kiryas Joel, 90 AD3d 1001 [2011]). The injured plaintiffs affidavit, submitted in opposition, presented feigned issues of fact designed to avoid the consequences of her earlier testimony, taken pursuant to General Municipal Law § 50-h, and thus was insufficient to defeat the defendant’s motion (see Hunt v Meyers, 63 AD3d 685, 685-686 [2009]). Accordingly, the Supreme Court should have granted the defendant’s motion for summary judgment dismissing the complaint. Balkin, J.P., Hall, Lott and Cohen, JJ., concur.