C.N. v Pat Corsetti, Inc.
Annotate this CaseDecided on March 20, 2018
Supreme Court, Rockland County
C.N. an infant by her father and Natural Guardian DAVID NUSSENZWEIG, and DAVID NUSSENZWEIG, individually, Plaintiffs,
against
Pat Corsetti, Inc., PLAYCORE WISCONSIN and THE VILLAGE OF SPRING VALLEY, Defendants.
PAT CORSETTI, INC., Third Party Plaintiff,
against
A & D CONSTRUCTION SERVICES, INC., Third Party Defendant
032370/2015
Harmon, Linder & Rogowsky, Esqs.
Kelly & Meenah, LLP
Gialleonardo & Rayhill
McAndrew, Conboy & Prisco
Henderson & Brennan, Esqs.
Robert M. Berliner, J.
The following papers, numbered 1 to 23, were read in connection with Defendants Pat Corsetti, Inc. [hereinafter "Corsetti"] PlayCore Wisconsin [hereinafter "PlayCore"], The Village [*2]of Spring Valley [hereinafter "Village"] and Third Party Defendant A & D Construction Services, Inc. [hereinafter "A & D"] respective motions for summary judgment pursuant to CPLR 3212:
Notice of Motion/Affirmation/Affidavit(Payne)/Exhibits(A-I)/Memorandum of Law 1-4
Affirmation in Opposition/Affidavit(Schachter)/Exhibits(A-C) 5-6
Reply Affirmation 7
Notice of Motion/Affirmation in Support/Exhibits(A-B) 8-9
Affirmation in Opposition/Affidavit(Schachter)/Exhibits(A-C) 10-11
Reply Affirmation 12
Notice of Motion/Affirmation in Support/Exhibits(A-O) 13-14
Affirmation in Opposition/Affidavit(Schachter)/Exhibits(A-C) 15-16
Conditional Affirmation in Opposition 17
Reply Affirmation 18
Notice of Motion/Affirmation in Support/Exhibits(A-K) 19-20
Affirmation in Opposition/Affidavit(Schachter)/Exhibits(A-C) 21-22
Reply Affirmation 23
Upon the foregoing papers, it is ORDERED that these motions are disposed of as follows:
This action arises from an accident which occurred at Babbin Court Park in Spring Valley, NY. Plaintiff C.N. [hereinafter "C.N."], who was almost three years of age at the time of the accident, sustained a fracture to her left forearm when she fell off a piece of playground equipment known as an "Astrorail Climber" [hereinafter "Astrorail"]. C.N. was allegedly positioning herself at the top of the Astrorail, preparing to slide down it, when she lost her balance and fell to the ground. C.N's mother accompanied her to the park that day and was not able to catch her daughter in time to prevent her fall. Plaintiffs now allege causes of action for negligence, breach of express warranty, breach of implied warranty and premises liability. Plaintiffs seek damages for the medical expenses incurred as a result of this accident. Now, each Defendant in this action has moved separately for summary judgment. The Court will address each Defendant's motion for summary judgment in turn.
"As we have stated frequently, the proponent of a summary judgment motion must make a prima facie showing of entitlement to judgment as a matter of law, tendering sufficient evidence to demonstrate the absence of any material issues of fact. Failure to make such prima facie showing requires a denial of the motion, regardless of the sufficiency of the opposing papers. Once this showing has been made, however, the burden shifts to the party opposing the [*3]motion for summary judgment to produce evidentiary proof in admissible form sufficient to establish the existence of material issues of fact which require a trial of the action." Alvarez v Prospect Hosp., 68 NY2d 320, 324 [1986][internal citations omitted].
Village Motion for Summary Judgment
Babbin Court Park is a public park owned by the Village. The Village made the decision to purchase the subject playground equipment, including the Astrorail. In support of its motion, the Village contends that C.N was playing on age inappropriate equipment when the accident occurred. The Astrorail was located in the area of the playground designated for children ages 5 to 12. It argues that this part of the playground had a prominent and clear sign which stated that the playground equipment in that area was suitable for ages 5 to 12. The Village states that the Astrorail requires balance and coordination that a toddler would not possess therefore it is marketed and designated as being appropriate for children ages 5 to 12. Furthermore, the Village explains that the surface of the playground was a 3 ½ inch pad of poured-in-rubber which is intended to prevent life threatening head injuries for falls up to 8 feet. The fall height from the Astrorail was 4 ½ feet. Both the Astrorail and the rubber playground surface meet the American Society for Testing and Materials (ASTM) playground design standard F1487 and are certified by the International Playground Equipment Manufacturers Association (IPEMA).
The Village states that they had received no prior complaints and that the playground was inspected daily. It contends that summary judgment is appropriate because as a matter of law, the playground equipment and ground cover were not defective and the park was maintained in a reasonably safe condition. The Village asserts that even if the court was to find it negligent, that its negligence was not the proximate cause of C.N.'s injuries. The Village argues that it was C.N's mother's decision to allow her 2-year-old daughter to play alone on playground equipment suitable for older children. The Village proffers the affidavit of Margaret A. Payne [hereinafter "Payne"], a playground safety inspector. In substance, Payne states that there was no evidence of negligence and that the playground equipment was maintained in a reasonably safe condition.
In opposition, Plaintiffs assert that the Village made the decision to purchase the Astrorail, build the park and open it to the general public. Plaintiffs argue that the Astrorail itself was a dangerous and hazardous piece of equipment. Furthermore, Plaintiffs assert that age specific stickers were not affixed to the playground equipment, therefore the Village failed to properly maintain the premises and created a dangerous condition. Plaintiffs proffer the report and affidavit of Joel Schachter, P.E., M.ASCE [hereinafter "Schachter"], a board-certified Professional Engineer. Plaintiffs contend that the design of the Astrorail was dangerous and did not comport with the requirements of what a slide is according to the guidelines issued by the U.S. Consumer Product Safety Commission in November 2010. Plaintiffs assert that it was obvious and foreseeable that a child would use the Astrorail as a slide. However, Plaintiffs assert that because of the missing age appropriate stickers, the fact that the age appropriate sign could be hidden from view, and the abscence of any warnings or instructions to the general public, the Astrorail could be dangerous if used as a slide. Thus, the Village failed at to keep the premises safe and clear of any dangerous conditions.
In reply, the Village, inter alia, states that the proffered affidavit of Schachter is conclusory, speculative and without merit. The Village argues that the ASTM standards require that either age related signs or labels be utilized, but having both is not required. The Village contends that Plaintiffs fail to raise a triable issue of fact.
The Court finds that the Village established its prima facie entitlement to judgment as a matter of law. The Court further finds that Plaintiffs have failed to raise any triable issue of fact as to negligence on behalf of the Village or failure to keep the premise safe and clear of any dangerous conditions. It is clear from the parties' submissions that Babbin Park is set up in two sections, one of which is appropriate for ages 5 to 12. All the photographs submitted to the court clearly show the age appropriate sign warning park patrons that the playground equipment is only suitable for older children. However, C.N.'s mother still chose to allow her child to play in an age inappropriate section of the park. The Schachter affidavit fails to raise any triable issue of fact as it is speculative, conclusory and the "alleged violations of guidelines promulgated by the Consumer Product Safety Commission. . . are neither mandatory nor intended to be the exclusive standards for playground safety." Merson v Syosset Cent. School Dist., 286 AD2d 668, 670 [2d Dept 2001]. Plaintiffs' contention that the Astrorail is inherently dangerous for its intended use is unsupported by the evidence submitted in this action. See Belkin v Middle Country Cent. School Dist., 261 AD2d 563 [2d Dept 1999]. Accordingly, the Village's motion for summary judgment is granted.
PlayCore Motion for Summary Judgment
PlayCore is the manufacturer of the Astrorail. In support of its motion, PlayCore argues that Plaintiffs have failed to establish a design or manufacturing defect in the Astrorail or that PlayCore breached any duty it owed to Plaintiffs. Furthermore, it asserts that C.N. did not fall while sliding down the Astrorail but instead when she was situating herself into a seated position at the top of the Astrorail preparing to slide down it. PlayCore states that it supplied age appropriate stickers and an age appropriate sign to be installed at the playground. PlayCore asserts that the Astrorail is not classified as a slide and that it was designed specifically so that it would not look like a slide. However, PlayCore concedes that an older child could still use it as a slide. PlayCore asserts that the sole cause of the injuries was Plaintiffs' inappropriate use of the Astrorail, and their decision to ignore the clear warning sign posted on the playground.
In opposition, Plaintiffs contend that PlayCore knew that children would use the Astrorail as a slide since the company observed children using it as a slide during the design phase. Plaintiffs assert that Kim Blackwood, Director of Design for PlayCore Wisconsin, stated at her deposition that the Astrorail would not pass safety standards for a slide. Plaintiffs proffer Schachter's affidavit and report stating that the design of the Astrorail encourages children to slide down its surface. Schachter states that the Astrorail's catalogue features pictures of children using the Astrorail as a slide. Furthermore, he states that no age appropriate stickers were placed on the Astrorail. Plaintiffs state that a material issue of fact exists as to whether PlayCore failed or succeeded in making the Astrorail not look like a slide as they allegedly intended to do. Plaintiffs argue that no testing was done on the Astrorail as to its sufficiency as a slide.
In reply, PlayCore states that whether the Astrorail is a slide or not is of no consequence as C.N. fell from the top of the playground equipment and not while sliding down the Astrorail. [*4]Furthermore, it asserts that the Schachter affidavit is fatally flawed as he is has no background in playground construction or safety and his inspection was two years after the accident.
The Court finds that PlayCore established its prima facie entitlement to judgment as a matter of law. The Court agrees with PlayCore that whether the Astrorail is a slide or not is of no legal consequence. PlayCore established that C.N. was injured when she fell from atop the Astrorail and not while sliding down it. Furthermore, PlayCore established that it provided age appropriate stickers and a large sign which put park patrons on notice that the equipment was meant for ages 5 to 12. PlayCore provided evidence that the Astrorail met the requirements of the ASTM, was certified by IPEMA and was never tested or intended to be used as a slide. Plaintiffs' contention that there is a triable issue of fact as to whether PlayCore succeeded or failed in making the Astrorail not look like a slide is unpersuasive and unavailing to establish the existence of a triable issue of fact.
The undisputed fact remains that C.N. was playing in an age inappropriate section of Dubbin Court Park which her mother knew was not suitable for her daughter. See Belkin v Middle Country Cent. School Dist., 261 AD2d 563 [2d Dept 1999]. Plaintiffs fail to raise a triable issue of fact as to the negligent design or installation of the Astrorail. See Moseley v Philip Howard Apartments Tenants Corp., 134 AD3d 785, 786 [2d Dept 2015]; Troiani v White Plains City School Dist., 64 AD3d 701, 702 [2d Dept 2009]; Merson v Syosset Cent. School Dist., 286 AD2d 668, 669—70 [2d Dept 2001]. Furthermore, the Court finds that PlayCore met its burden of showing that it did not create an unsafe or defective condition. See Davidson v Sachem Cent. School Dist., 300 AD2d 276, 277 [2d Dept 2002]. Accordingly, PlayCore's motion for summary judgment is granted.
Corsetti and A & D Motions for Summary Judgment
Coresetti was the general contractor hired by the Village to build Babbin Court Park and who was responsible for the landscaping and paving for the park. A & D was the subcontractor who installed the playground equipment. The Court will address these motions together as both defendants argue substantively the same thing and Plaintiffs oppose both motions with the same arguments. In support of their motions, Corsetti and A & D argue, in substance, that there is no evidence that the equipment was defective, installed improperly or malfunctioned in any way. They state that they followed the parameters given by the Village and PlayCore in installing the playground. Both companies had no role in determining what playground equipment was to be installed or where it was to be installed at the site. Both defendants assert that the equipment was in no way defective and they cannot be held liable for Plaintiffs' injuries.
In opposition, Plaintiffs contend that there was no evidence presented that Corsetti and A & D followed PlayCore's instructions and specification for installation, including placing age appropriate stickers on the Astrorail. Plaintiffs assert that no defendant has proffered any evidence that the stickers ever existed on the Astrorail or any part of the playground equipment at the time of the accident. Plaintiffs proffer the report and affidavit of Schachter, which states that he did not see age specific stickers on the Astrorail during his site visit on June 24, 2014, two years after the accident. Schachter states that it is conceivable that upon entering the park and approaching the Astrorail, a parent might not see the age specific sign that was posted. Plaintiffs state that this corroborated the testimony of C.N.'s mother, who stated that she did not [*5]see the sign while C.N. was playing on the Astrorail. Furthermore, Plaintiffs contend that the fact that the age specific stickers were missing on the equipment is a material issue of fact as defendants have argued that C.N.'s young age contributed to the accident.
In reply, Corsetti argues that an age appropriate sticker was placed on the equipment as evidenced by the deposition testimony of Alfonso Corsetti. Mr. Corsetti testified that the sticker is not placed on each individual piece but rather one sticker goes on the entire playground structure itself. Corsetti argues that Plaintiffs' arguments in opposition are disingenuous and fail to raise a triable issue of fact. A & D, inter alia, reiterates its argument that Plaintiffs have provided no proof that its installation work was improper or incorrect.
The Court finds that Defendants Corsetti and A & D have tendered sufficient evidence to establish prima facie entitlement to summary judgment. The Court further finds that Plaintiffs have failed to raise any triable issue of fact as to the construction or installation of the Astrorail or Babbin Park. Plaintiffs' only argument is premised upon holding Defendants Corsetti and A & D accountable for alleged missing age specific stickers which the Court finds is speculative and unpersuasive. Plaintiffs fail to produce any evidence of improper construction, defective equipment or dangerous equipment in regards to the Astrorail's installation. Accordingly, Defendants Corsetti and A & D's motions for summary judgment are granted.
Based upon the foregoing, it is
ORDERED, that Defendant Village's motion for summary judgment is granted; and it is further;
ORDERED, that Defendant PlayCore's motion for summary judgment is granted; and it is further,
ORDERED, that Defendant Corsetti's motion for summary judgment is granted; and it is further,
ORDERED, that Defendant A & D's motion for summary judgment is granted; and it is further,
The foregoing constitutes the Decision and Order of the Court.
Dated: March 20, 2018
New City, New York
E N T E R
__________________________
HON. ROBERT M. BERLINER, J.S.C.
Some case metadata and case summaries were written with the help of AI, which can produce inaccuracies. You should read the full case before relying on it for legal research purposes.
This site is protected by reCAPTCHA and the Google Privacy Policy and Terms of Service apply.
