Banks v. Freeport Union Free School District

302 A.D.2d 341, 753 N.Y.S.2d 890

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: February 3, 2003
• Status: Published

Opinion

In an action to recover damages for personal injuries, the plaintiffs appeal from an order of the Supreme Court, Nassau County (Warshawsky, J.), dated March 27, 2002, which granted the defendant’s motion for summary judgment dismissing the complaint.

Ordered that the order is affirmed, with costs.

The infant plaintiff allegedly was injured on a school playground when, during the course of playing on the “monkey bars,” she failed to catch hold of one of the bars and fell to the ground.

The defendant established its entitlement to judgment as a matter of law by demonstrating that the wood chip ground cover used as an impact cushioning under the monkey bars was maintained in a reasonably safe condition (see Rhabb v New York City Hous. Auth., 41 NY2d 200). In opposition, the plaintiffs failed to raise a triable issue of fact sufficient to warrant denial of the motion (see Alvarez v Prospect Hosp., 68 NY2d 320). Neither the deposition testimony nor the affidavit of the plaintiffs’ expert was sufficient, as the expert never inspected or measured the ground cover, and his opinion was based solely upon photographs of the scene and his review of affidavits. Accordingly, it was insufficient to raise a triable issue of fact as to whether the depth of the ground cover was adequate (see Leggio Gearhart, 294 AD2d 543, 544; Lopez v Free-port Union Free School Dist., 288 AD2d 355, 356; Merson v Syosset Cent. School Dist., 286 AD2d 668, 670). S. Miller, J.P., Schmidt, Townes and Crane, JJ., concur.