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Peters v. City of New York

NEW YORK SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT


April 7, 2009

BROOK PETERS, ETC., ET AL., PLAINTIFFS-APPELLANTS,
v.
THE CITY OF NEW YORK, ET AL., DEFENDANTS-RESPONDENTS.

Order, Supreme Court, New York County (Karen S. Smith, J.), entered November 15, 2007, which granted defendants' motion for summary judgment dismissing the complaint, unanimously affirmed, without costs.

Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.

This opinion is uncorrected and subject to revision before publication in the Official Reports.

Andrias, J.P., Friedman, McGuire, Moskowitz, JJ.

112866/05

The infant plaintiff allegedly was injured while climbing an eight-foot fence around a public playground when he slipped and got caught on one of the six-inch spikes at the top. Through plaintiffs' testimony and photographs of the fence, defendants established prima facie that the fence was in a reasonably safe condition and that the spikes were open and obvious (see Koppel v Hebrew Academy of Five Towns, 191 AD2d 415 [1993], lv denied 82 NY2d 652 [1993]). In opposition, plaintiffs failed to raise an issue of fact as to these issues or the negligent design or construction of the fence (see id.).

We have considered plaintiffs' remaining contentions and find them unavailing.

THIS CONSTITUTES THE DECISION AND ORDER OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.

20090407

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