De Preter v. City of New York

Order, Supreme Court, New York County (Walter Tolub, J.), entered October 13, 1994, which denied plaintiff’s motion for partial summary judgment on the issue of liability, unanimously affirmed, without costs.

Triable issues of fact preclude summary judgment, including whether the allegedly defective playground equipment with the protruding metal bolt was the proximate cause of plaintiff infant’s injury. The infant’s father states that he heard the infant screaming and turned immediately to see her standing next to the playground equipment with blood streaming down her face. He does not claim to have actually witnessed the accident, and even if he did so claim, the issue of credibility presented would render summary judgment inappropriate (see, Capelin Assocs. v Globe Mfg. Corp., 34 NY2d 338, 341). Concur — Rosenberger, J. P., Asch, Williams and Mazzarelli, JJ.