2 No. 135
Alexandra Buckley, et al.,
Appellants,
v.
Sun and Surf Beach Club, Inc.,
Respondent.
_________________________________________________________________
2000 NY Int. 126
November 21, 2000
This memorandum is uncorrected and subject to revision before
publication in the New York Reports.
Fred J. Hirsh, for appellants.
Robert J. Levine, for respondent.
Defense Association of New York, Inc., amicus curiæ.
_________________________________________________________________
_________________________________________________________________
MEMORANDUM:
The order of the Appellate Division should be reversed, with costs,
and defendant's motion for summary judgment denied.
A portion of the infant-plaintiff's finger was severed when, in
jumping off an unattended, elevated lifeguard's stand at defendant's
beach club, the ring on that finger caught on a nail protruding from
the stand. The accident happened at about 10:45 p.m. on September 1,
1995, while plaintiff was attending an end- of-summer party at the
club. In opposing defendant's motion for summary judgment, plaintiffs
submitted evidentiary proof in admissible form setting forth the
following facts: although the beach was closed for swimming daily at
not later than 7 p.m., when the lifeguards went off duty, children of
club members frequently played on the beach after hours, and climbed
on and jumped off the lifeguard stand. The club's management was
actually aware that this practice "had been going on for years." A
child who had accompanied plaintiff when the accident occurred
described having seen nails "sticking up out of the wood" of the
stand, including the one that caused the injury, on the many times
when he had climbed onto the stand during that summer.
The foregoing proof created triable issues of fact concerning (1)
whether the existence of the protruding nails created a dangerous
condition in the lifeguard stand which defendant knew children
SNIPPETS:
Alexandra Buckley, et al., Appellants, v. Sun and Surf Beach Club, Inc., Respondent.
This memorandum is uncorrected and subject to revision before publication in the New York
Fred J. Hirsh, for appellants.
Robert J. Levine, for respondent.
The order of the Appellate Division should be reversed, with costs, and defendant's motion
A portion of the infant-plaintiff's finger was severed when, in jumping off an unattended,
A child who had accompanied plaintiff when the accident occurred described having seen nails
The foregoing proof created triable issues of fact concerning whether the existence of the
If the risk of harm was foreseeable, the particular manner in which the injury occurred here
Buckley v Sun and Surf Beach Club No. 135
Rosenblatt, J. (dissenting):
Chief Judge Kaye and Judges Smith, Levine, Ciparick and Wesley concur.
Judge Rosenblatt dissents and votes to affirm in a memorandum.
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