Polanco v. Durgaj

Polanco v Durgaj (2022 NY Slip Op 01258) Polanco v Durgaj 2022 NY Slip Op 01258 Decided on February 24, 2022 Appellate Division, First Department Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. This opinion is uncorrected and subject to revision before publication in the Official Reports. Decided and Entered: February 24, 2022 Before: Webber, J.P., Kern, Moulton, González, Mendez, JJ. Index No. 302481/15E Appeal No. 15384 Case No. 2021-01359 [*1]Esther Polanco, Plaintiff-Respondent, v Paul Durgaj, Defendant-Appellant. Miller Leiby & Associates, P.C., New York (Jeffrey R. Miller of counsel), for appellant. Martin L. Ginsberg, P.C., Woodbury (Martin L. Ginsberg of counsel), for respondent. Order, Supreme Court, Bronx County (Donald A. Miles, J.), entered on or about November 23, 2020, which, to the extent appealed from as limited by the briefs, granted plaintiff's motion to vacate a prior order granting defendant's unopposed motion for summary judgment, and upon vacatur, denied defendant's motion for summary judgment, unanimously reversed, on the law, without costs, and plaintiff's motion to vacate denied. The Clerk is directed to enter judgment dismissing the complaint. In this action in which plaintiff sustained injuries when she slipped and fell on the sidewalk owned by defendant, her affidavit that she slipped on ice on the sidewalk contradicted her earlier deposition testimony that she did not know what she slipped on, and thus created only a feigned issue of fact, which was insufficient to defeat defendant's motion (see Mermelstein v East Winds Co., 136 AD3d 505, 505 [1st Dept 2016]; Telfeyan v City of New York, 40 AD3d 372, 373 [1st Dept 2007]). Plaintiff's decision to walk on the outside of a shoveled path in front of the building that had been cleared of snow and ice was the sole proximate cause of her accident (see Anderson v Verizon N.Y., Inc., 190 AD3d 515 [1st Dept 2021]; Tzamarot v JP Morgan Chase & Co., 167 AD3d 550 [1st Dept 2018], lv denied 33 NY3d 904 [2019]).THIS CONSTITUTES THE DECISION AND ORDER OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT. ENTERED: February 24, 2022