Speirs v. Dick's Clothing & Sporting Goods, Inc.

268 A.D.2d 581, 702 N.Y.S.2d 842, 2000 N.Y. App. Div. LEXIS 917

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: January 31, 2000
• Status: Published

Opinion

—In an action to recover damages for personal injuries, etc., the plaintiffs appeal from an order of the Supreme Court, Dutchess County (Beisner, J.), dated September 19, 1998, which granted the defendant’s motion for summary judgment dismissing the complaint.

Ordered that the order is affirmed, with costs.

The affidavit of the plaintiffs’ expert, submitted in opposition to the defendant’s motion, was conclusory, not based on the expert’s personal knowledge, and did not set forth any specific safety guidelines allegedly violated by the merchandise display base over which the injured plaintiff fell. Therefore, that affidavit was insufficient to defeat the defendant’s motion for summary judgment (see, Levitt v County of Suffolk, 145 AD2d 414, 415; Estate of Burke v Repetti & Co., 255 AD2d 483; see also, McCrorey v City of Buffalo, 210 AD2d 908).

The merchandise display base was an open and obvious condition readily observable through the reasonable use of one’s senses (Binensztok v Marshall Stores, 228 AD2d 534; see also, Russell v Archer Bldg. Ctrs., 219 AD2d 772, 773). Accordingly, the Supreme Court properly granted the defendant’s motion. Mangano, P. J., Altman, Schmidt and Smith, JJ., concur.