Tavares v. City of New York

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.

Accordingly, the defendant’s motion for summary judgment dismissing the complaint was properly granted. Mastro, J.E, Florio, Eng and Sgroi, JJ., concur.