MILLER v. KINGS PARK CENTRAL SCHOOL DISTRICT (2008)

In an action to recover damages for personal injuries, etc., the plaintiffs appeal from an order of the Supreme Court, Suffolk County (Emerson, J.), dated March 6, 2007, which granted the defendants' respective motions for summary judgment dismissing the complaint insofar as asserted against them.

ORDERED that the order is affirmed, with one bill of costs.

The infant plaintiff was injured when, during an after-school child-care program operated by the defendant Town of Smithtown (hereinafter the Town), she fell from monkey bars in the playground on the property of the defendant Kings Park Central School District (hereinafter School District).

 The School District 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, 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, 753 N.Y.S.2d 890).   In opposition, the plaintiffs relied on the opinion of an expert who inspected the playground approximately seven months after the incident and thus failed to establish the condition of the playground at the time of the incident (see McCarthy v. State of New York, 167 A.D.2d 516, 517, 562 N.Y.S.2d 190).   Moreover, the expert relied upon alleged violations of guidelines promulgated by the American Society for Testing and Materials and the United States Consumer Product Safety Commission, which are nonmandatory and not meant to be the exclusive standards for playground safety (see Merson v. Syosset Cent. School Dist., 286 A.D.2d 668, 670, 730 N.Y.S.2d 132).   This and the other evidence submitted by the plaintiffs in opposition was insufficient to raise a triable issue of fact (see Sobti v. Lindenhurst School Dist., 35 A.D.3d 439, 825 N.Y.S.2d 251;  Swan v. Town of Brookhaven, 32 A.D.3d 1012, 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;  Davidson v. Sachem Cent. School Dist., 300 A.D.2d 276, 277, 751 N.Y.S.2d 300;  Washington v. City of Yonkers, 293 A.D.2d 741, 742, 742 N.Y.S.2d 316;  Merson v. Syosset Cent. School Dist., 286 A.D.2d 668, 670, 730 N.Y.S.2d 132).

 The Town established its prima facie entitlement to judgment as a matter of law with respect to the plaintiffs' claim that negligent supervision by Town personnel was the proximate cause of the accident by demonstrating that there was adequate playground supervision, and that a lack of supervision was not a proximate cause of the accident (see Swan v. Town of Brookhaven, 32 A.D.3d 1012, 821 N.Y.S.2d 265;  Lopez v. Freeport Union Free School Dist., 288 A.D.2d 355, 734 N.Y.S.2d 97;  Botti v. Seaford Harbor Elementary School Dist. 6, 24 A.D.3d 486, 808 N.Y.S.2d 236;  Biondolillo v. City of New York, 13 A.D.3d 568, 786 N.Y.S.2d 323;  Navarra v. Lynbrook Pub. Schools, Lynbrook Union Free School Dist., 289 A.D.2d 211, 733 N.Y.S.2d 730;  Berdecia v. City of New York, 289 A.D.2d 354, 735 N.Y.S.2d 554).   In opposition, the plaintiffs failed to raise a triable issue of fact.

Accordingly, the Supreme Court properly granted the defendants' respective motions for summary judgment dismissing the complaint insofar as asserted against them.