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

Melanie GREENE, etc., et al., Appellants, v. TOYS “R” US, INC., Respondent.

Decided: March 25, 2002

MYRIAM J. ALTMAN, J.P., ANITA R. FLORIO, HOWARD MILLER and BARRY A. COZIER, JJ. Crystal Burden, P.C. (Sanford F. Young, P.C., New York, N.Y. [Jan B. Rothman] of counsel), for appellants. Chesney & Murphy, LLP (Lysaght & Russo, P.C., Rockville Centre, N.Y. [Michelle S. Russo] of counsel), for respondent.

In an action to recover damages for personal injuries, etc., the plaintiffs appeal from an order of the Supreme Court, Richmond County (J. Leone, J.), dated January 19, 2001, which granted the defendant's motion for summary judgment dismissing the complaint.

ORDERED that the order is reversed, on the law, with costs, the motion is denied, and the complaint is reinstated.

The infant plaintiff was almost three years old when allegedly she was injured as a result of falling off a climbing toy displayed on the floor of the defendant's store.   Although the toy was designed to have a slide attachment, it had been removed by the defendant's employees because the toy was for display only.   As a result, the infant plaintiff fell onto the floor as she attempted to climb out of one of the toy's openings.   The defendant moved for summary judgment dismissing the complaint, contending, inter alia, that the toy as assembled and displayed without the slide attachment did not constitute a dangerous condition, and that the condition of the toy was nevertheless open and obvious.

In opposition to the defendant's prima facie showing of entitlement to judgment as a matter of law, the plaintiff raised a triable issue of fact as to whether it was reasonably foreseeable that, under the circumstances of this case, the infant plaintiff would climb out of the toy and sustain an injury (see Holtslander v. Whalen & Sons, 70 N.Y.2d 962, 525 N.Y.S.2d 793, 520 N.E.2d 512;  Cruz v. New York City Tr. Auth., 136 A.D.2d 196, 526 N.Y.S.2d 827).   Therefore, the defendant's motion should have been denied.

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