| Tavares v City of New York |
| 2011 NY Slip Op 07028 [88 AD3d 689] |
| October 4, 2011 |
| Appellate Division, Second Department |
| Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. |
| Kiwan Tavares, an Infant, by His Mother and Natural Guardian,
Lourdes Tavares, et al., Appellants, v City of New York, Respondent. |
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Michael A. Cardozo, Corporation Counsel, New York, N.Y. (Stephen J. McGrath and Larry
A. Sonnenshein of counsel), for respondent.
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 NY2d 320 [1986]). 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 AD2d 741, 742 [2002], quoting Merson v Syosset Cent. School Dist., 286 AD2d 668, 670 [2001]). Thus, the expert affidavit was insufficient to raise a triable issue of fact. [*2]
Accordingly, the defendant's motion for summary judgment dismissing the complaint was properly granted. Mastro, J.P., Florio, Eng and Sgroi, JJ., concur.