JONKE v. The Foot Locker Inc., et al., Defendants. (2006)

Order, Supreme Court, New York County (Leland DeGrasse, J.), entered April 20, 2005, which, to the extent appealed from as limited by the briefs, granted the cross motion by defendants Venator Group Specialty Co., F.W. Woolworth Co. and Village Wheels Bike Shop for summary judgment dismissing the amended complaint as against them, unanimously affirmed, without costs.

The motion was based on evidentiary proof submitted in admissible form, including plaintiff's own sworn deposition testimony and verified bill of particulars.   Plaintiff testified that he saw and heard the bicycle suspension fork break when the accident occurred.   Defendants' evidence regarding the manufacturer's installation of the bicycle fork, plaintiff's own installation of an upgrade modification, and the description of the accident are based in large measure on plaintiff's personal knowledge.

No party has submitted any evidence sufficient to raise a triable issue of fact as to whether the bicycle was in a defective condition when it left the possession of the moving defendants (see Zuckerman v. City of New York, 49 N.Y.2d 557, 427 N.Y.S.2d 595, 404 N.E.2d 718 [1980];  cf. Robinson v. Reed-Prentice Div. of Package Mach. Co., 49 N.Y.2d 471, 426 N.Y.S.2d 717, 403 N.E.2d 440 [1980] ).

We have considered plaintiff's remaining arguments and find them without merit.