Kosicki v. Spring Garden Ass'n

Scudder, P.J., and Smith, J. (dissenting in part).

We respectfully dissent in part. We agree with the majority that Supreme Court properly granted that part of defendant’s motion for summary judgment dismissing the complaint with respect to the allegedly inadequate swing seat. We do not agree, however, that there is a triable issue of fact with respect to the condition of the ground under the swing from which plaintiffs daughter fell, and we therefore would affirm the order granting defendant’s motion in its entirety. In our view, defendant met its initial burden in that respect by…