BERGIN v. TOWN OF OYSTER BAY (2008)

In an action to recover damages for personal injuries, etc., the plaintiffs appeal from an order of the Supreme Court, Nassau County (Parga, J.), entered December 22, 2006, which granted the defendant's motion for summary judgment dismissing the complaint.

ORDERED that the order is affirmed, with costs.

The infant plaintiff Alexandra Bergin allegedly was injured when she fell from a horizontal ladder apparatus at a playground owned by the defendant Town of Oyster Bay. As the infant plaintiff reached for the third rung of the horizontal ladder, her hand slipped from the rung and she fell to the ground.   The plaintiffs alleged that the injuries sustained by the infant plaintiff were the result of inadequate ground cover on the playground surface beneath the horizontal ladder.

 The defendant established its prima facie entitlement to judgment as a matter of law by presenting evidence that it maintained the playground in a reasonably safe condition (see Swan v. Town of Brookhaven, 32 A.D.3d 1012, 1013, 821 N.Y.S.2d 265;  Capotosto v. Roman Catholic Diocese of Rockville Ctr., 2 A.D.3d 384, 386, 767 N.Y.S.2d 857;  Banks v. Freeport Union Free School Dist., 302 A.D.2d 341, 341-342, 753 N.Y.S.2d 890;  Lopez v. Freeport Union Free School Dist., 288 A.D.2d 355, 356, 734 N.Y.S.2d 97).   The nonmandatory United States Consumer Product Safety Commission guidelines referred to by the plaintiffs, as well as the other proof offered in opposition to the motion, was insufficient to raise a triable issue of fact as to whether there was a dangerous or defective condition at the playground on the day of the accident (see Swan v. Town of Brookhaven, 32 A.D.3d at 1013, 821 N.Y.S.2d 265;  Capotosto v. Roman Catholic Diocese of Rockville Ctr., 2 A.D.3d at 386, 767 N.Y.S.2d 857;  Merson v. Syosset Cent. School Dist., 286 A.D.2d 668, 670, 730 N.Y.S.2d 132;  cf. Gonzalez v. Board of Educ. of City of Yonkers, 298 A.D.2d 358, 359, 751 N.Y.S.2d 256).