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Knox v. United Christian Church of God

SUPREME COURT OF THE STATE OF NEW YORK APPELLATE DIVISION SECOND JUDICIAL DEPARTMENT


September 8, 2009

DAMON KNOX, APPELLANT,
v.
UNITED CHRISTIAN CHURCH OF GOD, INC., RESPONDENT.

In an action to recover damages for personal injuries, the plaintiff appeals from an order of the Supreme Court, Kings County (Hurkin-Torres, J.), dated July 2, 2008, which granted the defendant's motion for summary judgment dismissing the complaint.

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.

ROBERT A. SPOLZINO, J.P., FRED T. SANTUCCI, ANITA R. FLORIO and PLUMMER E. LOTT, JJ.

(Index No. 24588/06)

DECISION & ORDER

ORDERED that the order is affirmed, with costs.

The defendant established its prima facie entitlement to judgment as a matter of law (see Alvarez v Prospect Hosp., 68 NY2d 320, 324) by demonstrating that the plaintiff was unable to identify the cause of his accident or establish that the accident occurred on the sidewalk abutting the defendant's premises (see Reiff v Beechwood Browns Rd. Bldg. Corp., 54 AD3d 1015; Kletke v GOS Corp., 51 AD3d 875; Slattery v O'Shea, 46 AD3d 669; Golba v City of New York, 27 AD3d 524; Koller v Leone, 299 AD2d 396). In opposition, the plaintiff failed to raise a triable issue of fact. The plaintiff's affidavit submitted in opposition to the motion merely raised feigned factual issues designed to avoid the consequences of his deposition testimony (see Karwowski v New York City Tr. Auth., 44 AD3d 826; Denicola v Costello, 44 AD3d 990; Manning v 6638 18th Ave. Realty Corp., 28 AD3d 434; Tejada v Jonas, 17 AD3d 448; Koller v Leone, 299 AD2d 396).

SPOLZINO, J.P., SANTUCCI, FLORIO and LOTT, JJ., concur.

20090908

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