Tavares v. City of New York

Appellate Division of the Supreme Court of New York

Tavares v. City of New York

88 A.D.3d 689, 930 N.Y.2d 462

CourtAppellate Division of the Supreme Court of the State of New York

DecidedOctober 4, 2011

StatusPublished

Cited by7 cases

This text of 88 A.D.3d 689 (Tavares v. City of New York) is published on Counsel Stack Legal Research, covering Appellate Division of the Supreme Court of the State of New York primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Tavares v. City of New York, 88 A.D.3d 689, 930 N.Y.2d 462 (N.Y. Ct. App. 2011).

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Opinion

[690]*690On 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.

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[690]*690On 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.

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Bluebook (online)

88 A.D.3d 689, 930 N.Y.2d 462, Counsel Stack Legal Research, https://law.counselstack.com/opinion/tavares-v-city-of-new-york-nyappdiv-2011.

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