Pecore v. City of Syracuse

—Appeal from an order of Supreme Court, Onondaga County (Murphy, J.), entered December 31, 2001, which denied defendant’s motion for summary judgment dismissing the complaint.

It is hereby ordered that the order so appealed from be and the same hereby is unanimously affirmed without costs.

Memorandum: Plaintiffs commenced this action seeking to recover damages for personal injuries sustained by Shannon Pecore (plaintiff), then 10 years old, when she fell from a swing at a playground owned and maintained by defendant. A supporting chain on the swing broke while plaintiff was swinging, and she fell to the ground. Supreme Court properly denied defendant’s motion seeking summary judgment dismissing the complaint based on lack of actual or constructive notice of the alleged defect in the swing. In support of the motion, defendant submitted evidence establishing that it performs “periodic visual inspections” of the playground equipment and that, if *979any problems are observed, a “written or verbal report” is made to its maintenance staff. Defendant’s Parks and Recreation landscape architect acknowledged at his deposition, however, that he was “not sure” whether defendant retained records of any complaints concerning the swing set. In addition, he did not know how often the visual inspections were performed, nor does defendant maintain records of those inspections. Thus, we conclude that defendant failed to meet its burden of establishing as a matter of law that it lacked actual or constructive notice of the alleged defect (see Gallagher v TDS Telecom, 294 AD2d 860). Contrary to defendant’s contention, the doctrine of assumption of the risk is not applicable here. A fall from a swing that suddenly breaks due to wear and deterioration is not a risk inherent in the activity and flowing from it (cf. Auwarter v Malverne Union Free School Dist., 274 AD2d 528). Present — Pigott, Jr., P.J., Wisner, Scudder, Burns and Gorski, JJ.