| Tavares v City of New York |
| 2011 NY Slip Op 07028 [88 AD3d 689] |
| October 4, 2011 |
| Appellate Division, Second Department |
| Kiwan Tavares, an Infant, by His Mother and Natural Guardian,Lourdes Tavares, et al., Appellants, v City of New York,Respondent. |
—[*1] Michael A. Cardozo, Corporation Counsel, New York, N.Y. (Stephen J. McGrath and LarryA. Sonnenshein of counsel), for respondent.
In an action to recover damages for personal injuries, etc., the plaintiffs appeal from an orderof the Supreme Court, Kings County (Sherman, J.), entered June 16, 2010, which granted thedefendant'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 playgroundwhen he fell from a ladder on a jungle gym. The playground was owned by the defendant, City ofNew York.
The defendant established its prima facie entitlement to judgment as a matter of law byoffering evidence that it neither created nor had actual or constructive notice of any dangerousconditions on the ladder (see Alvarez v Prospect Hosp., 68 NY2d 320 [1986]). In hisaffidavit submitted in opposition, the plaintiffs' expert relied upon alleged violations ofguidelines promulgated by the Consumer Products Safety Commission, " 'which are neithermandatory nor intended to be the exclusive standards for playground safety' " (Washington vCity of Yonkers, 293 AD2d 741, 742 [2002], quoting Merson v Syosset Cent. SchoolDist., 286 AD2d 668, 670 [2001]). Thus, the expert affidavit was insufficient to raise atriable issue of fact.[*2]
Accordingly, the defendant's motion for summaryjudgment dismissing the complaint was properly granted. Mastro, J.P., Florio, Eng and Sgroi, JJ.,concur.