Opinion
January 31, 1994
Appeal from the Supreme Court, Kings County (Held, J.).
Ordered that the order is reversed, on the law, with costs, and the motion is denied.
The infant plaintiff was playing on a swing in a playground when his foot struck a low fence. He fell to the ground, and was injured. An action was commenced against the appellant, who, in turn, brought a third-party action against the third-party defendants. The third-party defendants moved to dismiss, arguing that no cause of action had been stated against them, and the Supreme Court, Kings County, granted the motion, dismissed the third-party complaint, and severed the action accordingly. The appellant argues that there were triable issues of fact as to whether the third-party defendants owned the property, had a duty to maintain it in reasonably safe condition, and breached that duty, proximately causing the injury. We agree and reverse.
If the third-party defendants owned the playground, they had the duty to maintain it in a reasonably safe condition, and may be held liable if the trier of fact finds that the injury was foreseeable and resulted from any negligence on their part (see, Adams v. New York City Hous. Auth., 165 A.D.2d 849; Rosario v. City of New York, 157 A.D.2d 467; Cruz v. New York City Tr. Auth., 136 A.D.2d 196). In reviewing an order granting summary judgment, the evidentiary facts alleged by the party opposing the motion and the inferences which may be drawn from them must be accepted as true (see, O'Neill v. Town of Fishkill, 134 A.D.2d 487). The appellant alleged clear specific facts supporting its claim, and the allegations were supported by evidence in the form of the infant plaintiff's deposition testimony. Therefore, it was error to dismiss the third-party complaint. Thompson, J.P., Rosenblatt, Ritter, Krausman and Friedmann, JJ., concur.