Court: Supreme Court, Appellate Division, Second Department, New York
Case: Tavares v. City of New York
Date: Oct. 4, 2011
From: New York attorney Gary E. Rosenberg (personal injury and accident attorney and lawyer; serving Queens Bronx; Queens injury attorney)
Comment: Cases where children have accidents in playgrounds are difficult to win. When you're suing the City of New York, rather than a school or day camp, they're pretty much impossible.
The courts know that tens or hundreds of thousands of children use public playgrounds and play apparatus. Unless the accident victim's lawyers can show a truly dangerous condition, with "prior notice" to the City of New York, these cases will lose every time.
Here, summary judgment granted to City of New York.
In an action to recover damages for personal injuries, etc., the plaintiffs appeal from an order of the Supreme Court, Kings County (Sherman, J.), entered June 16, 2010, which granted the defendant'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 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 N.Y.2d 320, 508 N.Y.S.2d 923, 501 N.E.2d 572). 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 A.D.2d 741, 742, 742 N.Y.S.2d 316, quoting Merson v. Syosset Cent. School Dist., 286 A.D.2d 668, 670, 730 N.Y.S.2d 132). 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.