Lopez v. Union Settlement Ass'n

Judgment on a verdict in favor of plaintiff in the sum of $12,189.50 in a personal injury action, unanimously reversed, on the law and on the facts, and a new trial ordered, with $50 costs to abide the event. Plaintiff’s proof is that he observed children pushing and fighting on top of the monkey bars for some ten minutes while two attendants stood by in conversation and failed to exercise supervision; that he then climbed the monkey bars and soon thereafter was pushed down. The bill of particulars alleges inadequate supervision of which defendant had constructive notice because of the length of time the said inadequacy persisted. The proof, however, was of negligent supervision. Moreover, plaintiff’s belated claim is supported solely by the testimony of the plaintiff who was less than *521eight years of age at the time of the accident and 17% years of age at the time of trial. His recollection is at best doubtful and speculative. The testimony of one of the nursery school teacher-attendants present at the time of the accident and standing near the apparatus was that plaintiff while swinging on the monkey bars let go and fell to the ground at a point away from the four mats placed beneath the structure. The verdict is against the weight of the credible evidence. “ [W]e are not required to give credence to a story so inherently improbable that we are morally certain it is not true.” (Bottalico v. City of New York, 281 App. Div. 339, 341.)