BELKIN v. MIDDLE COUNTRY CENTRAL SCHOOL DISTRICT

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Supreme Court, Appellate Division, Second Department, New York.

Anna M. BELKIN, et al., appellants, v. MIDDLE COUNTRY CENTRAL SCHOOL DISTRICT, et al., respondents (and a third-party action).

Decided: May 24, 1999

CORNELIUS J. O'BRIEN, J.P., GLORIA GOLDSTEIN, DANIEL F. LUCIANO and ROBERT W. SCHMIDT, JJ. Easton & Clark, Levittown, N.Y. (Deborah S. Kurtz of counsel), for appellants. Devitt, Spellman, Barrett, Callahan, Leyden & Kenney, L.L.P., Smithtown, N.Y. (Laure C. Nolan and L. Kevin Sheridan of counsel), for respondents Middle Country Central School District and Holbrook Road Elementary School. Wiggins and Masson, L.L.P., Ithaca, N.Y. (Robin Abrahamson Masson of counsel), for respondents Robert S. Leathers, Architect, P.C., and Leathers & Associates, Inc.

In an action to recover damages for personal injuries, etc., the plaintiffs appeal from an order of the Supreme Court, Kings County (Doyle, J.), dated April 28, 1998, which granted the respective motions of the defendants to dismiss the complaint insofar as asserted against them.

ORDERED that the order is affirmed, with one bill of costs to the defendants appearing separately and filing separate briefs.

The plaintiff Anna M. Belkin was injured when her foot became caught in a two-inch gap in the riser of a staircase which was part of playground equipment on the premises of the Holbrook Road Elementary School, where she had taken her children to play.

The defendants established that the playground equipment was built for young children according to specifications.   The plaintiffs' contention that the design was inherently dangerous for its intended use is unsupported by legally-competent proof (see, Prosser v. County of Erie, 244 A.D.2d 942, 665 N.Y.S.2d 216;  Pinzon v. City of New York, 197 A.D.2d 680, 602 N.Y.S.2d 909;  McCarthy v. State of New York, 167 A.D.2d 516, 562 N.Y.S.2d 190;  Dolan v. City of New York, 5 A.D.2d 300, 171 N.Y.S.2d 724).

MEMORANDUM BY THE COURT.

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