Jones v. City of Albany

Casey, J. Appeal from an order of the Supreme Court (Kahn, J.), entered September 24, 1986 in Albany County, which denied defendant Albany City School District’s motion for summary judgment dismissing the complaint against it. Plaintiff seeks to recover damages for injuries sustained while he was attempting to do a "flip” from the top of a chain link fence and the fence, which surrounded a running track adjacent to Albany High School in the City of Albany, collapsed. Plaintiff and a friend, who were then students at Albany High School, had left the school cafeteria during their lunch period to practice gymnastics on a grassy area near the track. Defendant Albany City School District (hereinafter defendant) moved for summary judgment dismissing plaintiff’s complaint against it. Supreme Court denied the motion on the ground that the only affidavit in support of the motion was that of defendant’s counsel, who lacked personal knowledge of the events. Defendant appeals from the order. Since defendant submitted the necessary copies of the pleadings and a transcript of plaintiff’s examination before trial along with the attorney’s affidavit, Supreme Court erred in failing to rule on the merits of defendant’s motion (see, Olan v Farrell Lines, 64 NY2d 1092, 1093; Bradt v John Hancock Mut. Life Ins. Co., 98 AD2d 886, 887). As to the merits, defendant contends that plaintiff’s conduct and resulting injuries were not reasonably foreseeable, but we conclude that the motion papers raise questions of fact on this and other relevant issues (see, Kush v City of Buffalo, 59 NY2d 26). The order denying defendant’s motion for summary judgment should, therefore, be affirmed. Order affirmed, without costs. Kane, J. P., Casey, Mikoll, Levine and Harvey, JJ., concur.