In Carriero v. Nazario, the Appellate Division, Second Department affirmed the dismissal of a lawsuit arising from injuries sustained by plaintiff when he dove into a shallow pool.
Defendants “established their prima facie entitlement to judgment as a matter of law by demonstrating that the plaintiff’s act of diving into the shallow pool was the sole proximate cause of his injuries.” In particular, defendants pointed to, among other things, “the transcript of the plaintiff’s deposition testimony, in which he testified that he swam and dove in the subject pool multiple times prior to the accident, and that he was aware of both the depth of the pool and the existence of the raised portion of the bottom of the pool.”
Plaintiff’s affidavit submitted in opposition to the motion failed to create an issue of fact, as it merely “presented apparent feigned issues of fact designed to avoid the consequences of his earlier deposition testimony.”