Fernandez v VLA Realty, LLC

Fernandez v VLA Realty, LLC 2007 NY Slip Op 08861 [45 AD3d 391] November 15, 2007 Appellate Division, First Department Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. As corrected through Wednesday, January 16, 2008

Mark Fernandez, Appellant,
v
VLA Realty, LLC, Respondent, et al., Defendant.

—[*1] Spiegel & Barbato, LLP, Bronx (Brian C. Mardon of counsel), for appellant.

Weiner, Millo & Morgan, LLC, New York City (Joseph A. Fitapelli of counsel), for respondent.

Order, Supreme Court, Bronx County (Dianne T. Renwick, J.), entered August 22, 2006, which granted defendant VLA Realty's motion for summary judgment dismissing the complaint, unanimously affirmed, without costs.

Plaintiff allegedly slipped while ascending an exterior staircase in defendants' building. However, his failure to identify the cause of his fall at his deposition was fatal to his case under the circumstances presented (see Pena v Women's Outreach Network, Inc., 35 AD3d 104, 109 [2006]; D'Ambra v New York City Tr. Auth., 16 AD3d 101 [2005]). Issues of fact and credibility are not ordinarily determined on a motion for summary judgment. But where self-serving statements are submitted by plaintiff in opposition that "clearly contradict plaintiff's own deposition testimony and can only be considered to have been tailored to avoid the consequences of h[is] earlier testimony, they are insufficient to raise a triable issue of fact to defeat defendant's motion for summary judgment" (see Phillips v Bronx Lebanon Hosp., 268 AD2d 318, 320 [2000]). Concur—Friedman, J.P., Sullivan, Buckley and Malone, JJ.