                           State of New York
                    Supreme Court, Appellate Division
                       Third Judicial Department
Decided and Entered: October 16, 2014                    517654
________________________________

DEBORAH DYER, as Parent and
   Guardian of SCARLETT DYER,
   an Infant,
                    Appellant,
      v                                      MEMORANDUM AND ORDER

CITY OF ALBANY,
                    Respondent,
                    et al.,
                    Defendant.
________________________________


Calendar Date:    September 5, 2014

Before:   Stein, J.P., McCarthy, Egan Jr., Lynch and Clark, JJ.

                              __________


      Towne, Ryan & Partners, PC, Albany (James T. Towne Jr. of
counsel), for appellant.

      Napierski, VanDenburgh, Napierski & O'Connor, LLP, Albany
(Sean F. Brousseau of counsel), for respondent.

                              __________


McCarthy, J.

      Appeal from an order of the Supreme Court (Platkin, J.),
entered August 28, 2013 in Albany County, which, among other
things, granted a motion by defendant City of Albany for summary
judgment dismissing the complaint against it.

      In September 2007, Scarlett Dyer, who was then eight years
old and suffering from a congenital condition that affected her
joints and prevented her from walking, sustained injuries when
she fell from a swing located at Buckingham Lake Park in the City
of Albany. Plaintiff, who is Scarlett's mother, commenced this
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action against defendant City of Albany (hereinafter defendant)
for failing to maintain the park and against defendant Playworld
Systems, Inc. for design and manufacturing defects. Defendant
eventually moved for summary judgment dismissing the complaint
against it. Plaintiff cross-moved for an order striking
defendant's answer pursuant to CPLR 3126 based upon defendant's
destruction of the swing and allegedly false deposition testimony
from defendant's park maintenance supervisor. Supreme Court
granted defendant's motion and denied the cross motion.
Plaintiff appeals.

      Supreme Court did not err in refusing to strike defendant's
answer. "[T]he drastic remedy of striking a pleading is
appropriate only where the moving party conclusively demonstrates
bad faith or willful, contumacious conduct" by the party who
fails to comply with disclosure or spoliates evidence (O'Connor v
Syracuse Univ., 66 AD3d 1187, 1191 [2009], lv dismissed 14 NY3d
766 [2010]; see Sugar Foods De Mexico v Scientific Scents, LLC,
88 AD3d 1194, 1196 [2011]). The maintenance supervisor's
testimony was not clearly false or misleading. While it could be
read as indicating that the entire swing set was placed on a
concrete base, it could also reasonably be interpreted to mean
that the legs or braces of the swing set were in concrete
footings. Because this appears to be a misunderstanding rather
than a willful attempt to mislead an opposing party, it was not
necessary or appropriate to impose a sanction. As for
destruction of the swing, the supervisor testified that he was
informed that someone had gotten hurt on one of the swings, so he
went to the park, inspected all of the swings and observed that
the safety mechanism would not latch on one swing. After
unsuccessfully attempting to latch it two times, he removed the
swing and disposed of it. Defendant had not been directed to
preserve the swing, it is unclear whether the disposal occurred
before plaintiff served a notice of claim, and neither plaintiff
nor her relatives had notified defendant of any problem with the
swing aside from that notice of claim. Plaintiff was not
particularly prejudiced because relatives took several clear
pictures of the swing the day after the accident and the
supervisor testified that the safety mechanism would not latch
(see Hartford Fire Ins. Co. v Regenerative Bldg. Constr., 271
AD2d 862, 864 [2000]; compare Miller v Weyerhaeuser Co., 3 AD3d
                              -3-                517654

627, 629 [2004], lv dismissed 3 NY3d 701 [2004], appeal dismissed
5 NY3d 822 [2005]). Hence, Supreme Court did not abuse its
discretion in deciding not to impose any sanction against
defendant pursuant to CPLR 3126 (see O'Connor v Syracuse Univ.,
66 AD3d at 1191; Hartford Fire Ins. Co. v Regenerative Bldg.
Constr., 271 AD2d at 864; see also Awon v Harran Transp. Co.,
Inc., 69 AD3d 889, 890 [2010]).

      Supreme Court properly granted defendant's motion for
summary judgment. Defendant was under a duty to maintain the
park in a reasonably safe condition (see Rhabb v New York City
Hous. Auth., 41 NY2d 200, 202 [1976]). Plaintiff alleged that
defendant breached this duty by failing to inspect and maintain
the swing itself, specifically the safety mechanism, and the
ground cover underneath the swing. The record lacks proof of
actual notice to defendant of any defective condition, such as
prior complaints or manufacturer's recalls, so plaintiff can only
prevail if defendant created a defective condition or had
constructive notice. As for the swing itself, plaintiff alleges
that Playworld, not defendant, created the defective safety
mechanism. The swing was apparently installed in the park after
April 1, 2007, so it had been in place for less than six months
at the time of the accident. Plaintiff and Scarlett's father
each testified that he placed Scarlett in the swing, latched the
safety mechanism and double checked it before he started to push
her. Within two minutes, the mechanism released and Scarlett
fell from the swing, breaking her leg when she hit the ground.
Her father then checked the mechanism again and it fully latched
as it had before. Although plaintiff contends that defendant
should have inspected the swing more regularly or kept records of
inspections, plaintiff merely speculates that inspections would
have revealed any defect; inspections are irrelevant considering
this testimony that the mechanism worked minutes before and
immediately after the accident. Thus, the record does not
contain proof of constructive notice regarding the safety
mechanism.

      Regarding ground cover, the supervisor testified that 8 to
12 inches of wood chips were placed on the ground under the
swings, and markings on the legs of the swing set would show if
the wood chips covered less than that depth. Defendant's
                               -4-                517654

playground safety expert averred that wood chips were appropriate
ground cover, the park was properly maintained and defendant
complied with applicable guidelines. While plaintiff's expert
averred that defendant did not comply with guidelines promulgated
by the Consumer Product Safety Commission, those guidelines were
not mandatory (see Tavares v City of New York, 88 AD3d 689, 690
[2011]; Miller v Kings Park Cent. School Dist., 54 AD3d 314, 315
[2008]), the portions raised by the expert were guidelines to
protect against head injuries rather than broken bones, he
referred to a version of the guidelines that was not published
until after this accident occurred and defendant's expert averred
that defendant complied with the earlier version of the
nonmandatory guidelines. Plaintiff's expert also asserted that
wood chips deteriorate and result in a hard surface that does not
effectively absorb impact forces, especially when proper drainage
does not exist.1 He further asserted that the area near the lake
in the park was wet, without proper drainage, such that the wood
chips there deteriorated to an unacceptable level. This was mere
speculation, considering that plaintiff's expert never went to
the park to observe, examine or measure the wood chips.
Defendant's expert, who indicated that she did examine the park
and the wood chips, averred that proper drainage existed, the
wood chips showed no signs of mold or mildew that would indicate
historic moisture accumulation or deterioration, and 8 to 12
inches of wood chips were present. Additionally, defendant's
expert referred to the guidelines raised by plaintiff's expert,
indicating that even if the wood chips had deteriorated and
compressed to only six inches, defendant still would be in
compliance with those guidelines. Because plaintiff's expert
reached conclusions based on speculation and inaccurate
assumptions that were not based on record evidence or an actual
inspection of the ground cover at the park, his opinion has no
probative force and cannot create a question of fact so as to
withstand summary judgment (see Buchholz v Trump 767 Fifth Ave.,


     1
        Although plaintiff contends that her expert was misled by
the supervisor's deposition testimony into believing that the
surface under the wood chips was concrete, her expert averred
that this type and depth of wood chips was inappropriate on any
hard surface, including hard packed dirt.
                              -5-                  517654

LLC, 5 NY3d 1, 9 [2005]; Hardsog v Price Chopper Operating Co.,
Inc., 99 AD3d 1130, 1132 [2012]; Gray v South Colonie Cent.
School Dist., 64 AD3d 1125, 1127-1128 [2009]). Inasmuch as
defendant established that it was not on notice of any defective
condition regarding the ground cover and did not breach its duty
to maintain the park, Supreme Court properly granted defendant's
motion for summary judgment dismissing the complaint against it.

     Stein, J.P., Egan Jr., Lynch and Clark, JJ., concur.



     ORDERED that the order is affirmed, without costs.




                             ENTER:




                             Robert D. Mayberger
                             Clerk of the Court
