Wright v. South Nassau Communities Hospital

In an action to recover damages for personal injuries, the plaintiff appeals from an order of the Supreme Court, Nassau County (Segal, J.), dated August 1, 1997, which granted the defendant’s motion for summary judgment dismissing the complaint. Ordered that the order is affirmed, with costs. The plaintiff fell after she stepped off of the curb in the parking lot of the defendant South Nassau Communities Hospital (hereinafter the Hospital). In her complaint and in the bill of particulars, the sole claim was that the hospital had negligently maintained the parking lot by failing to clean debris upon which the plaintiff allegedly slipped. It was this negligence claim that the Hospital addressed in its motion for summary judgment, submitting the deposition testimony of the plaintiff and those of her family members who witnessed the accident, as well as the testimony of the Hospital’s Director of Safety and Security. Contrary to our dissenting colleague’s conclusion, such evidence supported the Supreme Court’s determination that the defendant made out a prima facie case that it was not negligent as a matter of law, since the evidence indicated that the Hospital did not have actual or constructive notice of a potentially defective condition (see, Gordon v American Museum of Natural History, 67 NY2d 836), and the Hospital did not breach a duty of care (see, Gallagher v St. Raymond's R.C. Church, 21 NY2d 554, 557; cf, Kurth v Wallkill Assocs., 132 AD2d 529). Furthermore, the plaintiff’s own testimony that she did not know what had caused the accident supports a [278] finding that, as a matter of law, the allegedly defective condition was not a proximate cause of the plaintiffs accident (see, CPLR 3212 [b]; Zuckerman v City of New York, 49 NY2d 557, 562). Thus, the burden shifted to the plaintiff to establish a triable issue of fact. For the first time in his opposing affirmation, the plaintiffs counsel raised the question of whether the lighting in the area where the plaintiff fell was adequate. While the deposition testimony in the record indicates that the plaintiff and most of her family members recalled that it was dark in the parking lot, they could not recall whether there were lighting fixtures in the immediate area. Furthermore, the bare, conclusory statement by the plaintiffs husband, who was not present at the time of the accident, that he believed the lighting to be inadequate was insufficient to raise a triable issue of fact in view of the detailed testimony by the Director of Safety and Security regarding the actual lighting in the parking lot (see, Montalbano v North Shore Univ. Hosp., 154 AD2d 579). In an effort to bolster the vague deposition testimony, the plaintiff submitted an opposing affidavit which was carefully tailored to create a triable issue regarding the adequacy of the lighting in the immediate area of the accident. Such a self-serving affidavit did not present sufficient evidence to sustain the plaintiffs burden to defeat summary judgment, particularly when she failed to claim in either the pleadings or her deposition that she fell because of her inability to see. To the contrary, she claimed that she was unable to say what caused her to slip and fall. Even in the opposing affidavit, where the plaintiff alleged that she stepped off the curb and then slipped on debris which caused her to fall, the plaintiff never stated that she was unable to see the curb and, as a result, she misstepped. Rather, she specifically stated that she walked carefully, stepped off of the curb and then slipped on unidentified debris. Thus, it appears that the new allegations regarding the inadequacy of the lighting were merely an attempt to avoid the consequences of earlier admissions (see, Garvin v Rosenberg, 204 AD2d 388; see also, Columbus Trust Co. v Campolo, 110 AD2d 616, affd 66 NY2d 701). Under the evidence presented in this case, therefore, there is no triable issue regarding the lighting. Rivas v Waldbaums Supermarket (247 AD2d 600), cited by the dissent, is factually distinguishable, since the issue of inadequate lighting was specifically pleaded as the cause of the plaintiffs injuries, and the defendant failed to sustain its initial burden of proving entitlement to summary judgment regarding [279] that factual issue upon the evidence presented. Equally distinguishable is Quinlan v Cecchini (41 NY2d 686), in which the undisputed evidence indicated that there was a complete lack of lighting for visitors to the defendant’s premises. Copertino, J. P., Santucci and Luciano, JJ., concur.