        SUPREME COURT OF THE STATE OF NEW YORK
           Appellate Division, Fourth Judicial Department

282
CA 16-01655
PRESENT: PERADOTTO, J.P., LINDLEY, DEJOSEPH, NEMOYER, AND TROUTMAN,


JOHN MANN, SR., PLAINTIFF-RESPONDENT,

                    V                             MEMORANDUM AND ORDER

AUTOZONE NORTHEAST, INC., DEFENDANT-APPELLANT.


GOLDBERG SEGALLA LLP, BUFFALO (MEGHAN M. BROWN OF COUNSEL), FOR
DEFENDANT-APPELLANT.

PHILIP A. MILCH, BUFFALO, FOR PLAINTIFF-RESPONDENT.


     Appeal from an order of the Supreme Court, Erie County (Catherine
R. Nugent Panepinto, J.), entered May 11, 2016. The order denied
defendant’s motion for summary judgment dismissing the complaint.

     It is hereby ORDERED that the order so appealed from is
unanimously reversed on the law without costs, the motion is granted,
and the complaint is dismissed.

     Memorandum: Plaintiff commenced this action seeking damages for
injuries he sustained when he allegedly slipped and fell on ice and
snow on a sidewalk in front of a store owned by defendant. On appeal,
defendant contends that Supreme Court erred in denying its motion for
summary judgment seeking dismissal of the complaint. We agree.

     Defendant met its initial burden by establishing that “there was
no dangerous or defective condition on the sidewalk at the location
where the plaintiff fell” (DiStefano v Ulta Salon, 95 AD3d 932, 932).
Defendant’s submissions, including the deposition testimony of
plaintiff and the store manager, and photographs of the scene taken
immediately following plaintiff’s fall, established that there was no
ice or snow on the curb of the sidewalk where plaintiff claimed to
have slipped while stepping up with his left foot. Contrary to
plaintiff’s contention, his deposition testimony does not indicate
that his right foot slipped on any purported ice or snow in the lower
area of the parking lot abutting the curb. Indeed, viewing the
evidence in the light most favorable to plaintiff in the context of
defendant’s motion for summary judgment (see Branham v Loews Orpheum
Cinemas, Inc., 8 NY3d 931, 932), we conclude that plaintiff
unequivocally testified that only his left foot slipped on the curb
and that his right foot was stable on the ground in the lower area at
the moment of his fall. We further conclude that plaintiff failed to
raise a triable issue of fact in opposition. Plaintiff’s opposing
affidavit regarding the nature of his fall and the condition of the
                                 -2-                           282
                                                         CA 16-01655

sidewalk contradicts his prior deposition testimony, and thus “its
submission ‘constitutes an attempt to raise feigned issues of fact
where none truly exists’ ” (Alati v Divin Bldrs., Inc., 137 AD3d 1577,
1579; see Telfeyan v City of New York, 40 AD3d 372, 373).




Entered:   March 24, 2017                      Frances E. Cafarell
                                               Clerk of the Court
