| Miller v Kings Park Cent. School Dist. |
| 2008 NY Slip Op 06548 [54 AD3d 314] |
| August 5, 2008 |
| Appellate Division, Second Department |
| Christine S. Miller et al., Appellants, v Kings Park CentralSchool District et al., Respondents. |
—[*1] O'Connor, O'Connor, Hintz & Deveney, LLP, Melville, N.Y. (Dawn C. Faillace-Dillon ofcounsel), for respondent Kings Park Central School District. Patrick F. Adams, P.C., Bayshore, N.Y. (Frank Call, Gary A. Pagliarello, and Imro Rooi ofcounsel), for respondent Town of Smithtown.
In an action to recover damages for personal injuries, etc., the plaintiffs appeal from an orderof the Supreme Court, Suffolk County (Emerson, J.), dated March 6, 2007, which granted thedefendants' respective motions for summary judgment dismissing the complaint insofar asasserted against them.
Ordered that the order is affirmed, with one bill of costs.
The infant plaintiff was injured when, during an after-school child-care program operated bythe defendant Town of Smithtown (hereinafter the Town), she fell from monkey bars in theplayground on the property of the defendant Kings Park Central School District (hereinafterSchool District).
The School District 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 [2006]; Capotosto vRoman Catholic Diocese of Rockville Ctr., 2 AD3d 384, 386 [2003]; Banks vFreeport Union Free School Dist., 302 AD2d 341 [2003]). In opposition, the [*2]plaintiffs relied on the opinion of an expert who inspected theplayground approximately seven months after the incident and thus failed to establish thecondition of the playground at the time of the incident (see McCarthy v State of New York,167 AD2d 516, 517 [1990]). Moreover, the expert relied upon alleged violations ofguidelines promulgated by the American Society for Testing and Materials and the United StatesConsumer Product Safety Commission, which are nonmandatory and not meant to be theexclusive standards for playground safety (see Merson v Syosset Cent. School Dist., 286AD2d 668, 670 [2001]). This and the other evidence submitted by the plaintiffs in oppositionwas insufficient to raise a triable issue of fact (see Sobti v Lindenhurst School Dist., 35 AD3d 439 [2006]; Swan v Town of Brookhaven, 32AD3d 1012 [2006]; Capotosto v Roman Catholic Diocese of Rockville Ctr., 2 AD3dat 386; Davidson v Sachem Cent. School Dist., 300 AD2d 276, 277 [2002];Washington v City of Yonkers, 293 AD2d 741, 742 [2002]; Merson v Syosset Cent.School Dist., 286 AD2d 668, 670 [2001]).
The Town established its prima facie entitlement to judgment as a matter of law with respectto the plaintiffs' claim that negligent supervision by town personnel was the proximate cause ofthe accident by demonstrating that there was adequate playground supervision, and that a lack ofsupervision was not a proximate cause of the accident (see Swan v Town of Brookhaven, 32 AD3d 1012 [2006]; Lopezv Freeport Union Free School Dist., 288 AD2d 355 [2001]; Botti v Seaford Harbor Elementary SchoolDist. 6, 24 AD3d 486 [2005]; Biondolillo v City of New York, 13 AD3d 568 [2004]; Navarrav Lynbrook Pub. Schools, Lynbrook Union Free School Dist., 289 AD2d 211 [2001];Berdecia v City of New York, 289 AD2d 354 [2001]). In opposition, the plaintiffs failedto raise a triable issue of fact.
Accordingly, the Supreme Court properly granted the defendants' respective motions forsummary judgment dismissing the complaint insofar as asserted against them. Mastro, J.P.,Florio, Dickerson and Belen, JJ., concur.