Harris v. Debbie's Creative Child Care, Inc.
Opinion of the Court
On the evening of May 6, 2008, at about 6:30 p.m., the nine-year-old plaintiff (hereinafter the infant plaintiff) was on the grounds of Jamaica Avenue School in Plainview to watch his brother’s T-ball game. These grounds, owned and maintained by the defendant Plainview-Old Bethpage Central School District (hereinafter the School District), contained a fenced-in playground which the School District leased to the defendant Debbie’s Creative Child Care, Inc. That evening, the School District had locked the gates to the playground fence at closing time, 5:00 p.m. The infant plaintiff, finding the gates locked, allegedly attempted to enter the closed playground by climbing onto a picnic table, which was adjacent to the fence and secured to it by a chain and lock. When his foot became caught between the table and the fence, he fell, and was injured. There was no evidence that the picnic table or fence was in any way defective.
The School District cross-moved for summary judgment dismissing the complaint insofar as asserted against it and, in the order appealed from, the Supreme Court, inter alia, denied the cross motion, determining that the School District failed to establish its prima facie entitlement to judgment as a matter of law. We reverse the order insofar as appealed from.
In opposition, the plaintiffs failed to raise a triable issue of fact (see Zuckerman v City of New York, 49 NY2d 557, 562 [1980]). The affidavit of the plaintiffs’ expert in opposition to the cross motion was speculative and conclusory, in that his opinions were not supported by empirical data or any relevant industry standard (see Fotiatis v Cambridge Hall Tenants Corp., 70 AD3d 631, 632 [2010]; Rivas-Chirino v Wildlife Conservation Socy., 64 AD3d 556, 558 [2009]). Accordingly, the Supreme Court should have granted the School District’s cross motion. Mastro, J.E, Angiolillo, Chambers and Cohen, JJ., concur.
Case-law data current through December 31, 2025. Source: CourtListener bulk data.