Opinion
2013-04-10
Nicolette MILLIGAN, etc., et al., appellants, v. HARBORFIELDS CENTRAL SCHOOL DISTRICT, et al., respondents, et al., defendants.
Bornstein & Emanuel, P.C. (Anita Nissan Yehuda, Roslyn Heights, N.Y., of counsel), for appellants. Devitt Spellman Barrett, LLP, Smithtown, N.Y. (Diane K. Farrell of counsel), for respondents.
Bornstein & Emanuel, P.C. (Anita Nissan Yehuda, Roslyn Heights, N.Y., of counsel), for appellants.Devitt Spellman Barrett, LLP, Smithtown, N.Y. (Diane K. Farrell of counsel), for respondents.
, J.P., REINALDO E. RIVERA, CHERYL E. CHAMBERS, and ROBERT J. MILLER, JJ.
In an action to recover damages for personal injuries, etc., the plaintiffs appeal, as limited by their brief, from so much of an order of the Supreme Court, Suffolk County (Pitts, J.), dated September 12, 2011, as granted the motion of the defendants Harborfields Central School District and Washington Drive Primary School for summary judgment dismissing the complaint insofar as asserted against them.
ORDERED that the order is affirmed insofar as appealed from, with costs.
The defendants Harborfields Central School District and Washington Drive Primary School (hereinafter together the school defendants) established their prima facie entitlement to judgment as a matter of law by showing that they acted as a reasonable parent would in comparable circumstances in allowing the eight-year-old infant plaintiff to use monkey bars ( see Mirand v. City of New York, 84 N.Y.2d 44, 49, 614 N.Y.S.2d 372, 637 N.E.2d 263;Khosrova v. Hampton Bays Union Free Sch. Dist., 99 A.D.3d 669, 951 N.Y.S.2d 235;Kelly G. v. Board of Educ. of City of Yonkers, 99 A.D.3d 756, 952 N.Y.S.2d 229). The school defendants submitted expert evidence demonstrating that the monkey bars were appropriate for the infant plaintiff's age group, and were not defective ( see Troiani v. White Plains City School Dist., 64 A.D.3d 701, 882 N.Y.S.2d 519;Newman v. Oceanside Union Free School Dist., 23 A.D.3d 631, 805 N.Y.S.2d 100).
In opposition, the plaintiffs did not raise a triable issue of fact. The affidavit of the plaintiffs' expert did not establish that he possessed the requisite skill, training, education, knowledge, or experience from which it can be assumed that the information imparted or the opinion rendered is reliable ( see O'Boy v. Motor Coach Indus., Inc., 39 A.D.3d 512, 834 N.Y.S.2d 231;Miele v. American Tobacco Co., 2 A.D.3d 799, 802, 770 N.Y.S.2d 386). Furthermore, his opinion that children of the infant plaintiff's age should not have been allowed to continue to use the monkey bars due to the number of children who fell off the monkey bars each day was conclusory and unsupported by any empirical data or relevant industry standard ( see Toes v. National Amusements, Inc., 94 A.D.3d 742, 941 N.Y.S.2d 666;Harris v. Debbie's Creative Child Care, Inc., 87 A.D.3d 615, 928 N.Y.S.2d 583).
Accordingly, the Supreme Court properly granted the school defendants' motion for summary judgment dismissing the complaint insofar as asserted against them.