Boyle v. Pottery Barn Outlet

In an action to recover damages for personal injuries, etc., the plaintiffs appeal from an order of the Supreme Court, Suffolk County (Mayer, J), dated February 24, 2012, which granted the defendant’s motion for summary judgment dismissing the complaint. Ordered that the order is affirmed, with costs. The plaintiff Elizabeth Boyle allegedly was injured when she tripped and fell over a cardboard box in the aisle of a store owned by the defendant. On its motion for summary judgment, the defendant made a prima facie showing that the complained-of condition was both open and obvious, i.e., readily observable by those employing the reasonable use of their senses, and not inherently dangerous as a matter of law (see Zegarelli v Dundon, 102 AD3d 958 [2013]; Atehortua v Lewin, 90 AD3d 794 [2011]; Robinson v 206-16 Hollis Ave. Food Corp., 82 AD3d 735 [2011]; see also Stern v Costco Wholesale, 63 AD3d 1139 [2009]; Gagliardi v Walmart Stores, Inc., 52 AD3d 777 [2008]; Espinoza v Hemar Supermarket, Inc., 43 AD3d 855 [2007]). In opposition, while the plaintiffs submitted the affidavit of a professional engineer, the affidavit was speculative, conclusory, and lacking in foundation (see Paladino v Time Warner Cable of N.Y. City, 16 AD3d 646, 648 [2005]), and thus failed to raise a triable issue of fact. Accordingly, the Supreme Court properly granted the defendant’s motion for summary judgment dismissing the complaint. Skelos, J.E, Austin, Sgroi and LaSalle, JJ., concur.