Supreme Court, Appellate Division, Second Department, New York.
Michael VALENZUELA, etc., Respondent, v. METRO MOTEL, LLC, et al., Appellants.
Decided: March 06, 2019
ALAN D. SCHEINKMAN, P.J., MARK C. DILLON, HECTOR D. LASALLE, VALERIE BRATHWAITE NELSON, JJ.
Molod Spitz & DeSantis, P.C., New York, N.Y. (Salvatore J. DeSantis of counsel), for appellants. Cellino & Barnes, New York, N.Y. (John E. Lavelle of counsel), for respondent.
DECISION & ORDER
In an action to recover damages for personal injuries, the defendants appeal from an order of the Supreme Court, Queens County (Carmen R. Velasquez, J.), entered October 4, 2017. The order, insofar as appealed from, upon renewal, adhered to the determination in an order of the same court entered September 24, 2015, denying the defendants' motion for summary judgment dismissing the complaint.
ORDERED that the order entered October 4, 2017, is reversed insofar as appealed from, on the law, with costs, upon renewal, the order entered September 24, 2015, is vacated, and the defendants' motion for summary judgment dismissing the complaint is granted.
On the evening of September 7, 2012, the plaintiff's infant son (hereinafter the infant) allegedly was injured when his leg became caught in a gap between two platforms on playground equipment located within premises owned by the defendants. The plaintiff, suing on behalf of the infant and derivatively, subsequently commenced this action against the defendants. The defendants moved for summary judgment dismissing the complaint, contending that the playground equipment was not in a defective condition. While the motion was pending, the parties stipulated to settle the action pending approval from the Supreme Court of the settlement “in the form of an infant's compromise order.” The court denied the motion without prejudice to renew in the event that the court did not approve the infant's compromise order. The infant's compromise order was not approved, and the defendants moved for leave to renew their motion for summary judgment dismissing the complaint. Upon renewal, the court denied the motion for summary judgment dismissing the complaint. The defendants appeal.
“A landowner has a duty to exercise reasonable care to maintain its premises in a reasonably safe condition ‘in view of all the circumstances, including the likelihood of injury to others, the seriousness of the injury, and the burden of avoiding the risk’ ” (Salomon v. Prainito, 52 A.D.3d 803, 804–805, 861 N.Y.S.2d 718, quoting Basso v. Miller, 40 N.Y.2d 233, 241, 386 N.Y.S.2d 564, 352 N.E.2d 868; see Moseley v. Philip Howard Apts. Tenants Corp., 134 A.D.3d 785, 787, 22 N.Y.S.3d 101; Iwelu v. New York City Transit Auth., 90 A.D.3d 712, 934 N.Y.S.2d 229). Here, upon renewal, the Supreme Court should have granted the defendants' motion for summary judgment dismissing the complaint. In support of the motion, the defendants submitted, inter alia, an expert affidavit, which established, prima facie, that the playground apparatus was not in violation of any relevant statutes or safety guidelines, that it was maintained in a reasonably safe condition, that the platforms were nonhazardous, and that the gaps between the platforms did not violate any applicable guidelines or standards (see Moseley v. Philip Howard Apts. Tenants Corp., 134 A.D.3d at 787, 22 N.Y.S.3d 101; Y.H. v. Town of Ossining, 99 A.D.3d 760, 761, 952 N.Y.S.2d 579; Newman v. Oceanside Union Free School Dist., 23 A.D.3d 631, 805 N.Y.S.2d 100; Belkin v. Middle Country Cent. School Dist., 261 A.D.2d 563, 691 N.Y.S.2d 84). In opposition, the plaintiff failed to raise a triable issue of fact.
Accordingly, upon renewal, the Supreme Court should have granted the defendants' motion for summary judgment dismissing the complaint.
SCHEINKMAN, P.J., DILLON, LASALLE and BRATHWAITE NELSON, JJ., concur.
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