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DAVID GARCIA, Appellant, v. NEW YORK CITY INDUSTRIAL DEVELOPMENT AGENCY et al., Respondents. (And a Third-Party Action.)

Barry Salman, J.

The motion was properly granted in the absence of evidence rebutting defendants' prima facie showing that the allegedly dangerous condition that caused plaintiffs injuries was readily observable ( see, Serrano v. New York City Hous. Auth., 268 A.D.2d 230; Goslin v. La Mora, 137 A.D.2d 941). Plaintiff's claim in his affidavit in opposition that the danger was obscured by an optical illusion is an issue raised there for the first time, and is inconsistent with his deposition testimony ( cf., Kistoo v. City of New York, 195 A.D.2d 403, 404), and also without any expert or other support. Nor can plaintiff's failure to exercise ordinary attention and perception be excused by defendants' alleged failure to comply with an alleged industry practice that would have obviated the danger ( see, Garcia v. New York City Hous. Auth., 234 A.D.2d 102, 103, lv denied 91 N.Y.2d 804, citing, inter alia, Russell v. Archer Bldg. Ctrs., 219 A.D.2d 772).

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GARCIA v. N.Y. CITY IND. DEV
(Jan 16, 2001)