(dissenting). We respectfully dissent. While we agree with the majority that there are factual questions regarding defendants’ breach of duty, we are not persuaded that proximate cause can be foreclosed as a matter of law based on this record. Proximate cause remains for the factfinder “where varying inferences are possible” (Mirand v City of New York, 84 NY2d 44, 51 [1994]).
Initially, although the expert of defendants Gloversville Enlarged School District and Gloversville Board of Education (hereinafter collectively referred to as defendants) states that he conducted tests that led him to conclude that the “ground cover (or lack thereof) made absolutely no difference” in this child’s injury when falling from about seven feet, interestingly none of those tests purported to use pea stone as a ground cover nor does the expert indicate that he reviewed the relevant Education Department guidelines. Defendants were aware of the Education Department guidelines requiring appropriate ground cover around the playground equipment and they acknowledged using pea stone to “take[ ] the impact away” at their five other playgrounds, whereas the subject playground surface was described by plaintiffs as grass and dirt. Moreover, the affidavit of plaintiffs’ expert—which included, among other things, the underlying facts, his experience and various criteria he considered—set forth his opinions that the playground surface was “extremely hazardous for a fall from th[e] height” which occurred here and that “[h]ad the surface been properly prepared, it is less likely that [the child] would have been injured from the fall.” Plaintiffs’ expert also included a detailed critique of the analysis used by defendants’ expert, setting forth reasons that he believed that the conclusions of that expert were “unclear and misleading.”
The proof, in our view, is sufficiently conflicting to present viable questions for trial. At a trial the “jury is not required to accept an expert’s opinion to the exclusion of the facts and circumstances disclosed by other testimony and/or the facts disclosed on cross-examination [and it] is at liberty to reject an *900expert’s opinion if it finds the facts to be different from those which formed the basis for the opinion or if, after careful consideration of all the evidence in the case, it disagrees with the opinion” (Zapata v Dagostino, 265 AD2d 324, 325 [1999] [citation omitted]; see Quigg v Murphy, 37 AD3d 1191, 1193 [2007]; Prescott v LeBlanc, 247 AD2d 802, 803 [1998]; Felt v Olson, 74 AD2d 722, 723 [1980], affd 51 NY2d 977 [1980]). We would affirm Supreme Court’s order.
Malone Jr., J., concurs. Ordered that the order is reversed, with costs, motions granted, summary judgment awarded to defendants and complaint dismissed.