Garcia-Martinez v City of New York

Garcia-Martinez v City of New York 2009 NY Slip Op 08954 [68 AD3d 428] December 3, 2009 Appellate Division, First Department Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. As corrected through Wednesday, February 10, 2010

Haydee Garcia-Martinez, Appellant,
v
City of New York et al., Defendants, and New York City Transit Authority et al., Respondents.

—[*1] Dinkes & Schwitzer, P.C., New York (Naomi J. Skura of counsel), for appellant.

Wallace D. Gossett, Brooklyn (Anita Isola of counsel), for respondents.

Order, Supreme Court, New York County (Donna M. Mills, J.), entered on or about June 18, 2008, to the extent it granted the motion of defendants New York City Transit Authority and Manhattan and Bronx Surface Transit Operating Authority for summary judgment dismissing the complaint as against them, unanimously affirmed, without costs. Appeal from that portion of the order that denied defendant 1873 Amsterdam Realty Corp.'s motion for summary judgment dismissing the complaint as against it unanimously dismissed, without costs, for failure to perfect in accordance with this Court's order entered June 18, 2009 (M-1928).

Defendants established prima facie, through plaintiff's deposition testimony, that they did not breach their duty as common carriers to provide a safe place for bus passengers to disembark (see Malawer v New York City Tr. Auth., 18 AD3d 293, 294-295 [2005], affd 6 NY3d 800 [2006]; Blye v Manhattan & Bronx Surface Tr. Operating Auth., 124 AD2d 106, 109 [1987], affd 72 NY2d 888 [1988]). Plaintiff testified that she was discharged at a designated bus stop, directly in front of a cleared path, which had a patch of ice on it, leading to the sidewalk, and that she had safely exited the bus before she fell on the sidewalk.

Plaintiff's affidavit in opposition, stating that the entire path to the sidewalk was covered with ice, which therefore was impossible to avoid, contradicted her deposition testimony describing a narrower patch of ice in the middle of the three-foot-wide pathway, and thus created [*2]only a feigned issue of fact insufficient to defeat defendants' motion (see Pippo v City of New York, 43 AD3d 303, 304 [2007]; Telfeyan v City of New York, 40 AD3d 372 [2007]). Concur—Gonzalez, P.J., Tom, Andrias, Nardelli and Richter, JJ. [Prior Case History: 20 Misc 3d 1111(A), 2008 NY Slip Op 51321(U).]