| Bergin v Town of Oyster Bay |
| 2008 NY Slip Op 04452 [51 AD3d 698] |
| May 13, 2008 |
| Appellate Division, Second Department |
| Alexandra Bergin et al., Appellants, v Town of Oyster Bay,Respondent. |
—[*1] Burns, Russo, Tamigi & Reardon, LLP, Garden City, N.Y. (John T. Pieret of counsel), forrespondent.
In an action to recover damages for personal injuries, etc., the plaintiffs appeal from an orderof the Supreme Court, Nassau County (Parga, J.), entered December 22, 2006, which granted thedefendant's motion for summary judgment dismissing the complaint.
Ordered that the order is affirmed, with costs.
The infant plaintiff Alexandra Bergin allegedly was injured when she fell from a horizontalladder apparatus at a playground owned by the defendant Town of Oyster Bay. As the infantplaintiff reached for the third rung of the horizontal ladder, her hand slipped from the rung andshe fell to the ground. The plaintiffs alleged that the injuries sustained by the infant plaintiff werethe result of inadequate ground cover on the playground surface beneath the horizontal ladder.
The defendant established its prima facie entitlement to judgment as a matter of law bypresenting evidence that it maintained the playground in a reasonably safe condition (see Swan v Town of Brookhaven, 32AD3d 1012, 1013 [2006]; Capotosto v Roman Catholic Diocese of Rockville Ctr., 2 AD3d384, 386 [2003]; Banks v Freeport Union Free School Dist., 302 AD2d 341,341-342 [2003]; Lopez v Freeport Union Free School Dist., 288 AD2d 355, 356 [2001]).The nonmandatory United States Consumer Product Safety Commission guidelines referred to bythe plaintiffs, as well as the other proof offered in opposition to the motion, was insufficient toraise a triable issue of fact as to whether there was a dangerous or defective condition at theplayground on the day of the accident (see Swan v Town of Brookhaven, 32 AD3d at1013; Capotosto v Roman Catholic Diocese of Rockville Ctr., [*2]2 AD3d at 386; Merson v Syosset Cent. School Dist., 286AD2d 668, 670 [2001]; cf. Gonzalez v Board of Educ. of City of Yonkers, 298 AD2d358, 359 [2002]). Spolzino, J.P., Balkin, Dickerson and Belen, JJ., concur.