Opinion
February 23, 1998
Appeal from the Supreme Court, Orange County (Slobod, J.).
Ordered that the order is modified by deleting the provision thereof which denied the motion of the Town of Wawayanda and substituting therefor a provision granting that motion, the complaint is dismissed insofar as asserted against the Town of Wawayanda, and the action against the remaining defendant is severed; as so modified, the order is affirmed insofar as appealed from, without costs or disbursements.
This action arose from an incident which occurred as the plaintiff Jennifer Vollmer was supervising her then almost three-year-old child as she traversed a "clatter bridge" at a playground located in a park in the Town of Wawayanda. The playground apparatus was designed and manufactured by the defendant Kompan/Big Toys Northeast, Inc., f/k/a Jeff Olson, Inc. (hereinafter Big Toys). A horizontal metal beam supporting a tire swing protruded at a right angle from the bridge structure. As the child walked across the bridge, the plaintiff ran to prevent her from being injured by what she believed to be a dangerous condition, and in doing so, she hit her head on the beam.
The Supreme Court correctly denied Big Toys' motion for summary judgment. The plaintiffs produced evidentiary proof in admissible form to establish the existence of material issues of fact regarding whether the supports for the horizontal beam were either improperly designed and/or installed ( see, Alvarez v. Prospect Hosp., 68 N.Y.2d 320; see also, Voss v. Black Decker Mfg. Co., 59 N.Y.2d 102; Vinogrado v. Clicquot Club Co., 55 A.D.2d 489). However, the Town was entitled to summary judgment since there is no evidence that it had either actual or constructive notice of any dangerous condition inherent in this particular piece of playground equipment ( see, Harris v. Village of E. Hills, 41 N.Y.2d 446; Ferris v. County of Suffolk, 174 A.D.2d 70).
Mangano, P.J., Bracken, Copertino and Santucci, JJ., concur.