Leonard v. County of Suffolk

[1066] In an action to recover damages for personal injuries, etc., the defendant appeals, as limited by its brief, from so much of an order of the Supreme Court, Suffolk County (Costello, J.), dated October 7, 2004, as denied its motion for summary judgment dismissing the complaint. Ordered that the order is affirmed insofar as appealed from, with costs. The County of Suffolk failed to establish its entitlement to judgment as a matter of law dismissing the complaint on the ground that the infant plaintiff, then seven years old, assumed the risk of playing on the subject monkey bar apparatus (see Winegrad v New York Univ. Med. Ctr. 64 NY2d 851, 853 [1985]; Rivera v Board of Educ. of City of Yonkers, 19 AD3d 394 [2005]; Douglas v John Hus Moravian Church of Brooklyn, Inc., 8 AD3d 327, 329 [2004]; Trainer v Camp Hadar Hatorah, 297 AD2d 731, 732 [2002]). Thus, we need not consider whether the plaintiffs’ papers in opposition were sufficient to raise a triable issue of fact (see Basmajian v Min Wang, 12 AD3d 471 [2004]; Mariaca-Olmos v Mizrhy, 226 AD2d 437, 438 [1996]). The County’s remaining contentions are without merit. Adams, J.P., Crane, Goldstein and Skelos, JJ., concur.