Kiwan Tavares, etc., et al., appellants, v City of New York, respondent. v. << (2011)

Submitted—September 20, 2011

DECISION & ORDER

In an action to recover damages for personal injuries, etc., the plaintiffs appeal from an order of the Supreme Court, Kings County (Sherman, J.), entered June 16, 2010, which granted the defendant's motion for summary judgment dismissing the complaint.

ORDERED that the order is affirmed, with costs.

On June 28, 2007, the infant plaintiff, Kiwan Tavares, allegedly was injured in a playground when he fell from a ladder on a jungle gym.   The playground was owned by the defendant, City of New York.

The defendant established its prima facie entitlement to judgment as a matter of law by offering evidence that it neither created nor had actual or constructive notice of any dangerous conditions on the ladder (see Alvarez v. Prospect Hosp., 68 N.Y.2d 320).   In his affidavit submitted in opposition, the plaintiffs' expert relied upon alleged violations of guidelines promulgated by the Consumer Products Safety Commission, “ ‘which are neither mandatory nor intended to be the exclusive standards for playground safety’ ” (Washington v. City of Yonkers, 293 A.D.2d 741, 742, quoting Merson v Syosset Cent. School Dist., 286 A.D.2d 668, 670).   Thus, the expert affidavit was insufficient to raise a triable issue of fact.

Accordingly, the defendant's motion for summary judgment dismissing the complaint was properly granted.

MASTRO, J.P., FLORIO, ENG and SGROI, JJ., concur.

ENTER:

Matthew G. Kiernan

Clerk of the Court