Opinion
May 24, 1993
Appeal from the Supreme Court, Nassau County (Murphy, J.).
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 [b]), and [it] must do so by tender of evidentiary proof in admissible form'" (Zuckerman v City of New York, 49 N.Y.2d 557, 562, quoting Friends of Animals v Associated Fur Mfrs., 46 N.Y.2d 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 A.D.2d 886, affd 28 N.Y.2d 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 A.D.2d 362; see, Blashka v South Shore Skating, 193 A.D.2d 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 N.Y.2d 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.