De Preter v. City of New York

Full title: PAUL DE PRETER, as Parent and Natural Guardian of OLIVIA DE PRETER, an…

Court: Appellate Division of the Supreme Court of New York, First Department

Date published: Sep 28, 1995

219 A.D.2d 561 (N.Y. App. Div. 1995)

631 N.Y.S.2d 351

Opinion

September 28, 1995

Appeal from the Supreme Court, New York County (Walter Tolub, J.).

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 N.Y.2d 338, 341).

Concur — Rosenberger, J.P., Asch, Williams and Mazzarelli, JJ.