| Y.H. v Town of Ossining |
| 2012 NY Slip Op 06780 [99 AD3d 760] |
| October 10, 2012 |
| Appellate Division, Second Department |
| Y.H. et al., Respondents, v Town of Ossining et al.,Appellants, and Kompan, Inc., Respondent. |
—[*1] Annette G. Hasapidis, South Salem, N.Y., for plaintiffs-respondents. Lawrence, Worden, Rainis, Bard, P.C., Melville, N.Y. (Margaret Hermann of counsel), fordefendant-respondent.
In an action to recover damages for personal injuries, etc., the defendants Town of Ossiningand Town of Ossining Department of Parks and Recreation appeal from so much of an order ofthe Supreme Court, Westchester County (Loehr, J.), entered November 15, 2011, as denied theircross motion for summary judgment dismissing the complaint and all cross claims insofar asasserted against them.
Ordered that the order is reversed insofar as appealed from, on the law, with one bill of costspayable by the respondents appearing separately and filing separate briefs, and the cross motionof the defendants Town of Ossining and Town of Ossining Department of Parks and Recreationfor summary judgment dismissing the complaint and all cross claims insofar as asserted againstthem is granted.
The infant plaintiff allegedly broke his right arm when he fell from a piece of playgroundequipment known as a "rocking tube" at a park located in the Town of Ossining. The infantplaintiff's mother was supervising him at the time of the accident.
The plaintiffs commenced this action against the Town of Ossining and the Town ofOssining Parks and Recreation Department (hereinafter together the Town defendants), and themanufacturer of the rocking tube, Kompan, Inc. (hereinafter Kompan), alleging that the rockingtube was unreasonably dangerous because it did not have a railing or handle, and it did not have asign warning that it may move when weight is placed upon it. The plaintiffs further alleged thatthe Town defendants were negligent in failing to provide an adequate playground surface orground cover underneath the rocking tube.
After discovery, Kompan moved, and the Town defendants cross-moved, for summaryjudgment dismissing the complaint and all cross claims insofar as asserted against each of them.In an order entered November 15, 2011, the Supreme Court granted Kompan's motion, butdenied the Town defendants' cross motion. The Town appeals from the denial of its cross motion,and we reverse the order insofar as appealed from.[*2]
"A landowner has a duty to exercise reasonable care tomaintain its premises in a reasonably safe condition 'in view of all the circumstances, includingthe likelihood of injury to others, the seriousness of the injury, and the burden of avoiding therisk' " (Salomon v Prainito, 52AD3d 803, 804-805 [2008], quoting Basso v Miller, 40 NY2d 233, 241 [1976]; see Iwelu v New York City Tr. Auth.,90 AD3d 712, 713 [2011]; Sarbak vSementilli, 51 AD3d 1001, 1002 [2008]). Here, the Town defendants established theirprima facie entitlement to judgment as a matter of law by presenting evidence that the rockingtube was not unreasonably dangerous. In this regard, the Town defendants submitted expertevidence demonstrating that the subject apparatus was tested by the International Play EquipmentManufacturers Association, which found that it conformed with the relevant safety guidelinespromulgated by the American Society for Testing and Materials (hereinafter ASTM). The Towndefendants also established that they provided signage for the apparatus that complied withASTM guidelines. Additionally, the Town defendants demonstrated that the depth of thecompacted wood chip surface beneath the apparatus conformed with such guidelines and that thesurface was maintained in a reasonably safe condition (see Daefler v Briarcliff Manor Union Free School Dist., 72 AD3d872, 873 [2010]; Giulini v UnionFree School Dist. # 1, 70 AD3d 632, 633 [2010]; Newman v Oceanside Union Free School Dist., 23 AD3d 631,631-632 [2005]; Banks v Freeport Union Free School Dist., 302 AD2d 341, 341 [2003]).In opposition, the plaintiffs and Kompan failed to raise a triable issue of fact. While the plaintiffssubmitted the affidavit of a licensed professional engineer, their expert did not establish that hehad any specialized knowledge, experience, training, or education regarding playgroundequipment so as to qualify him to render an opinion in this area (see O'Boy v Motor Coach Indus., Inc.,39 AD3d 512, 514 [2007]; Rosen vTanning Loft, 16 AD3d 480, 481 [2005]; Shea v Sky Bounce Ball Co., 294AD2d 486, 487 [2002]).
Accordingly, the Town defendants' cross motion should have been granted. Angiolillo, J.P.,Dickerson, Belen and Miller, JJ., concur.