McGuire v. Quinnonez
| Decision Date | 12 January 2001 |
| Citation | 720 N.Y.S.2d 812,280 AD2d 587 |
| Parties | (A.D. 2 Dept. 2001) James H. McGuire, et al., respondents, v. Paul Quinnonez, appellant. 2000-01859 Argued - |
| Court | New York Supreme Court — Appellate Division |
Robert P. Tusa, Garden City, N.Y. (David Holmes of counsel), for appellant.
Dinerman, Bergam & Dinerman, New York, N.Y. (Barry M. Dinerman of counsel), for respondents.
In an action to recover damages for personal injuries, etc., the defendant appeals from so much of an order of the Supreme Court, Nassau County (Ort, J.), entered February 2, 2000, as denied his motion for summary judgment dismissing the complaint.
ORDERED that the order is reversed insofar as appealed from, on the law, with costs, the motion is granted, and the complaint is dismissed.
At his examination before trial, the injured plaintiff James H. McGuire testified that it was "raining ice" shortly before he slipped and fell on an ice-covered stairway at the defendant's premises. Three years after the accident, and nine months after his deposition, in opposition to the defendant's prima facie showing of entitlement to summary judgment, the injured plaintiff stated in an affidavit that the storm had ended more than three hours before his accident. Thus, the plaintiffs contended that the defendant had a reasonably sufficient time after the cessation of the precipitation to remedy the allegedly hazardous condition (see, Simmons v Metropolitan Life Ins. Co., 84 N.Y.2d 972; Lamolly v Mobile Veterinary Tenant Unit Enters., 276 A.D.2d 596). These contradictory statements raised a feigned factual issue designed to avoid the consequences of his earlier admission (see, Martin v W.B. Rest., Inc., 269 A.D.2d 431; Vento v City of New York, 262 A.D.2d 309; Capraro v Staten Is. Univ. Hosp., 245 A.D.2d 256). Accordingly, the defendant's motion should have been granted.
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