Bua v. South Shore Skating, Inc.

193 A.D.2d 774, 598 N.Y.S.2d 75, 1993 N.Y. App. Div. LEXIS 5222

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: May 24, 1993
• Status: Published

Opinion

In an action to recover damages for personal injuries, the defendants appeal from an order of the Supreme Court, Nassau County (Murphy, J.), dated January 22, 1991, which denied their motion for summary judgment dismissing the complaint.

Ordered that the order is reversed, on the law, with costs, the defendants’ motion for summary judgment dismissing the complaint is granted, and the complaint is dismissed.

To obtain summary judgment " 'it is necessary that the movant establish [its] cause of action or defense "sufficiently to warrant the court as a matter of law in directing judgment” in [its] favor (CPLR 3212, subd Ob]), and [it] must do so by tender of evidentiary proof in admissible form’ ” (Zuckerman v City of New York, 49 NY2d 557, 562, quoting Friends of Animals v Associated Fur Mfrs., 46 NY2d 1065, 1067-1068).

In support of its motion for summary judgment, the defendants submitted, inter alia, portions of the examinations before trial of the plaintiffs, i.e., the injured infant and her mother. This probative evidence indicated that the infant plaintiff suffered injuries as a result of "sudden and abrupt action” by an unknown skater which "could not have been anticipated or avoided by the most intense supervision” (Baker v Eastman Kodak Co., 34 AD2d 886, affd 28 NY2d 636). Under these circumstances, liability cannot be imposed on the rink’s owner (see, Baker v Eastman Kodak Co., supra; Taynor v Skate Grove, 150 AD2d 362; see, Blashka v South Shore Skating, 193 AD2d 772 [decided herewith]). The plaintiffs’ opposition consists of an attorney’s affirmation which is insufficient, as a matter of law, to defeat the defendants’ motion for summary judgment (see, Vermette v Kenworth Truck Co., 68 NY2d 714.)

Accordingly, the order appealed from is reversed, and the defendants’ motion for summary judgment granted. Mangano, P. J., Thompson, Balletta and Joy, JJ., concur.