Defendant Plaza Materials Corporation (Plaza) moves for summary judgment pursuant to CPLR 3212.

Defendants E.J. Excavating Company, Inc. (EJ); City of New York (City); and Vales Construction Corp./ Adostine Vales (collectively, Vales) cross-move for summary judgment pursuant to CPLR 3212.

In 2001, plaintiff fell on a depression in the public roadway. Photographs taken by plaintiff's expert show a shallow depression in the roadway, which is smooth and otherwise unnoticeable to the naked eye. By placing a "straight edge" across the area, it appears, as measured by plaintiff's expert, that the depression slopes to a point 3" lower than the surrounding roadway in one direction, and only 1" lower than the surrounding roadway when measured by placing a "straight edge" perpendicular to the prior measurement.

In 1989, eleven years prior to the accident at issue, defendant EJ did work on the roadway, including re-paving. Vales was ostensibly a subcontractor on the project. Plaza apparently only supplied asphalt. The work was accepted by the City in 1989.

Plaintiff's expert examined the location in 2000. He states: [*2]

The uneven pavement condition occurred because of either an improper placement of the asphalt or too little time allowed for the asphalt to cure before automobile traffic was permitted to pass. It has existed in this hazardous form for a period of at least several months.

The City now contends that the action is barred by the decision in Bielecki v City of New York, 14 AD3d 301, 788 NYS2d 67 [2005]). The remaining defendants contend (other than defendant Plaza) that there is no evidence that any defect existed when their work was completed. Defendant Plaza contends that it merely supplied materials to the project.

The proponent of a motion for summary judgment carries the initial burden of production of evidence as well as the burden of persuasion. (Alvarez v. Prospect Hospital, 68 NY2d 320, 508 NYS2d 923, 501 NE2d 320 [1986].) Thus, the moving party must tender ^[FN1] sufficient evidence to demonstrate as a matter of law the absence of a material issue of fact. Once that initial burden has been satisfied, the "burden of production" (not the burden of persuasion) shifts to the opponent, who must now go forward and produce sufficient evidence in admissible form to establish the existence of a triable issue of fact. The burden of persuasion, however, always remains where it began, i.e., with the proponent of the issue. Thus "if the evidence on the issue is evenly balanced, the party that bears the burden must lose." (Director, Office of Workers Compensation Programs v. Greenwich Collieries, supra , 512 U.S. at 272; 300 East 34th Street Co. v. Habeeb, 248 AD2d 50, 683 NYS2d 175 [1st Dept. 1997].)

The court's function on this motion for summary judgment is issue finding rather than issue determination. (Sillman v. Twentieth Century Fox Film Corp., 3 NY2d 395, 144 NE2d 387, 165 NYS2d 49 [1957]). Since summary judgment is a drastic remedy, it should not be granted where there is any doubt as to the existence of a triable issue. (Rotuba Extruders v. Ceppos, 46 NY2d 223, 385 NE2d 1068, 413 NYS2d 141 [1978].) Thus, when the existence of an issue of fact is even arguable or debatable, summary judgment should be denied. (Stone v. Goodson, 8 NY2d 8, 167 NE2d 328, 200 NYS2d 627 [1960]; Sillman v. Twentieth Century Fox Film Corp., supra ).

The role of the court is to determine if bona fide issues of fact exist, and not to resolve issues of credibility. As the Court stated in Knepka v. Tallman (278 AD2d 811, 718 NYS2d 541 [4th Dept. 2000]):

Supreme Court erred in resolving issues of credibility in granting defendants' motion for summary judgment dismissing the complaint (see, Mickelson v. Babcock, 190 AD2d 1037, 593 NYS2d 657; see generally, Black v. Chittenden, 69 NY2d 665, 669, 511 NYS2d 833, 503 NE2d 1370; Capelin Assocs. v. Globe Mfg. Corp., 34 NY2d 338, 341, 357 NYS2d 478, 313 NE2d 776). Any inconsistencies between the deposition testimony of plaintiffs and their affidavits submitted in opposition to the motion present credibility issues for trial (see, Schoen v. Rochester Gas & Elec., 242 AD2d 928, 665 NYS2d 372; Mickelson v. Babcock, supra ).

[*3](See also, Yaziciyan v. Blancato, 267 AD2d 152, 700 NYS2d 22 [1st Dept. 1999] ["The deponent's arguably inconsistent testimony elsewhere in his deposition merely presents a credibility issue properly left for the trier of fact.")

Nevertheless, summary judgment is properly granted when the opponent of the motion raises only feigned issues of fact. (See Perez v. Bronx Park South Associates, —A.D.2d—. —N.Y.S.2d — [1st Dept. 2001], in which the Court held that the submission of a one-page affidavit from a neighbor, which was in conflict with plaintiff's deposition testimony, was insufficient to raise an issue of fact; Glick & Dullock v. Tri-Pac Export Corp., 22 NY2d 439, 441 ["feigned" issues do not raise question of fact]; Singh v. Kolcaj Realty Corp, —A.D.2d—, —N.Y.S.2d — [1st Dept. 2001][plaintiff's expert's opinion that illegally parked car was proximate cause of accident was a legal conclusion which was of no consequence, and could not defeat defendant's motion for summary judgment]; Phillips v. Bronx Lebanon Hospital, 268 AD2d 318, 701 NYS2d 403 [1st Dept. 2000] ["self-serving affidavits submitted by plaintiff in opposition clearly contradict plaintiff's own deposition testimony and can only be considered to have been tailored to avoid the consequences of her earlier testimony....")

Defendant City is clearly entitled to summary judgment. (See Bielecki v City of New York, 14 AD3d 301, 788 NYS2d 67 [2005]). There is no evidence that any defect was "immediately apparent", assuming, arguendo, that the gradual, concave depression in the roadway constitutes a defect. (Walker v. City of New York, 2006 NY App. Div. LEXIS 13119, 2006 NY Slip Op 7977 [1st Dep't Nov. 2, 2006].)^[FN2]

As to defendant Plaza, there is no evidence other than that Plaza delivered materials, and there is no claim that the materials delivered were defective.

As to the remaining defendants, the only evidence that they created a defective condition is the unsupported opinion of plaintiff's expert. While he opines that the asphalt was negligently placed or not permitted to cure, he provides no basis whatsoever to substantiate this conclusion. The opinion is not supported by any testing or objective criteria other than an examination of the street in 2000. There is simply no basis set forth supporting the expert's conclusion that the condition of the street was due to the negligence of the remaining defendants.

The complaint is dismissed. The third party action is dismissed.

This is the order of the court.

DATEHon. Paul A. Victor