Opinion
2002-00157
Submitted January 9, 2003.
February 13, 2003.
In an action to recover damages for personal injuries, etc., the plaintiffs appeal from an order of the Supreme Court, Suffolk County (Hall, J.), dated October 31, 2001, which granted the defendants' motion for summary judgment dismissing the complaint.
Riconda Garnett, LLP, Valley Stream, N.Y. (John Riconda of counsel), for appellants.
Jeffrey Samel, New York, N.Y. (David Samel of counsel), for respondents.
Before: MYRIAM J. ALTMAN, J.P., NANCY E. SMITH, LEO F. McGINITY, SANDRA L. TOWNES, JJ.
DECISION ORDER
ORDERED that the order is affirmed, with costs.
The plaintiff Joseph Orelli, then two years old, allegedly was injured when he fell off a coin-operated ride at a restaurant owned by the defendants. After the ride ended, the infant plaintiff's six-year-old sister, who had been on the ride with him, stepped off the ride, turned around, saw the infant plaintiff on the floor crying, and told her father. The infant plaintiff and his mother commenced this action alleging that the defendants were negligent. The Supreme Court granted the defendants' motion for summary judgment dismissing the complaint. We affirm.
The defendants established prima facie their entitlement to summary judgment (see generally Bernstein v. City of New York, 69 N.Y.2d 1020, 1021-1022; D'Meza v. City of New York, 286 A.D.2d 471, 472). In opposition, the plaintiffs failed to submit evidence in admissible form sufficient to raise a triable issue of fact. The unsworn letter of the plaintiffs' playground safety expert was not competent evidence to defeat the motion for summary judgment (see CPLR 2106; Ritts v. Teslenko, 276 A.D.2d 768; Woodard v. City of New York, 262 A.D.2d 405), and, in any event, was too speculative to raise a triable issue of fact (see Merson v. Syosset Central School Dist., 286 A.D.2d 668; Pinzon v. City of New York, 197 A.D.2d 680; McCarthy v. State of New York, 167 A.D.2d 516). In addition, the hearsay statements of the infant plaintiff's sister were not competent evidence to defeat the summary judgment motion (see Phillips v. Kantor Co., 31 N.Y.2d 307, 312, 315; Allstate Ins. Co. v. Keil, 268 A.D.2d 545). In any event, the statements are insufficient to raise a triable issue of fact regarding the manner in which the infant plaintiff sustained his injury (see Bernstein v. City of New York, supra; D'Meza v. City of New York, supra).
ALTMAN, J.P., SMITH, McGINITY and TOWNES, JJ., concur.