Rajgopaul v. Toys "R" Us, Inc. , 747 N.Y.2d 792 ( 2002 )

The defendant established its prima facie entitlement to summary judgment dismissing the complaint by showing that it neither created an unsafe condition nor had actual or constructive notice thereof (see Pianforini v Kelties Bum Steer, 258 AD2d 634; Marcelle v New York City Tr. Auth., 289 AD2d 459). In response, the plaintiffs submitted no proof, only speculation, as to what actually may have caused the fall (see Pianforini v Kelties Bum Steer, supra). The conclusory affidavits supplied by the plaintiffs contradicted prior deposition testimony and do not constitute the sort of evidence needed to defeat a motion for summary judgment (see Humphreys v Veneziano, 268 AD2d 461; see also Marcelle v New York City Tr. Auth., supra).

The plaintiffs’ remaining contentions are without merit. Florio, J.P., S. Miller, Crane and Mastro, JJ., concur.