Opinion
2018–13252 Index No. 704645/16
07-08-2020
Paris ASPROU, respondent, v. HELLENIC ORTHODOX COMMUNITY OF ASTORIA, et al., appellants.
Catalano Gallardo & Petropoulos, LLP, Jericho, NY (Gary Petropoulos and Ian L. Glick of counsel), for appellants. Sacco & Fillas, LLP, Astoria, NY (James R. Baez of counsel), for respondent.
Catalano Gallardo & Petropoulos, LLP, Jericho, NY (Gary Petropoulos and Ian L. Glick of counsel), for appellants.
Sacco & Fillas, LLP, Astoria, NY (James R. Baez of counsel), for respondent.
CHERYL E. CHAMBERS, J.P., JOSEPH J. MALTESE, LINDA CHRISTOPHER, PAUL WOOTEN, JJ.
DECISION & ORDER In an action to recover damages for personal injuries, the defendants appeal from an order of the Supreme Court, Queens County (Ulysses B. Leverett, J.), entered October 22, 2018. The order denied the defendants' motion for summary judgment dismissing the amended complaint.
ORDERED that the order is affirmed, with costs.
On January 12, 2016, the plaintiff allegedly was injured when he slipped and fell on water leaking from the roof of the defendants' gymnasium while playing basketball. In April 2016, the plaintiff commenced this action against the defendants to recover damages for personal injuries. The defendants moved for summary judgment dismissing the amended complaint, arguing that they did not create or have actual or constructive notice of the allegedly dangerous condition that caused the plaintiff's accident and that the plaintiff's action was barred by the doctrine of primary assumption of risk. The Supreme Court denied the defendants' motion, and the defendants appeal.
" ‘A defendant who moves for summary judgment in a slip-and-fall case has the initial burden of making a prima facie showing that it neither created the allegedly hazardous condition nor had actual or constructive notice of its existence’ " ( Griffin v. PMV Realty, LLC, 181 A.D.3d 912, 912–913, 119 N.Y.S.3d 876, quoting Steele v. Samaritan Found., Inc., 176 A.D.3d 998, 999, 110 N.Y.S.3d 448 ). "A party ... who has actual knowledge of an ongoing and recurring dangerous condition can be charged with constructive notice of each specific [recurrence] of that condition" ( Pagan v. New York City Hous. Auth., 172 A.D.3d 888, 889, 101 N.Y.S.3d 168 [internal quotation marks omitted] ). "A question of fact regarding a recurrent dangerous condition can be established by offering evidence that an ongoing and recurring dangerous condition existed in the area of the accident which was routinely left unaddressed" ( Mauge v. Barrow St. Ale House, 70 A.D.3d 1016, 1017, 895 N.Y.S.2d 499 ).
Here, the defendants satisfied their prima facie burden of establishing that they neither created the alleged hazardous condition nor had actual notice of it (see Griffin v. PMV Realty, LLC, 181 A.D.3d at 913, 119 N.Y.S.3d 876 ). In opposition, the plaintiff raised a triable issue of fact as to whether the defendants created the condition by negligently maintaining or repairing the roof (see Monaco v. Hodosky, 127 A.D.3d 705, 707, 7 N.Y.S.3d 197 ).
Additionally, the defendants failed to eliminate all triable issues of fact as to whether they had constructive notice of the alleged hazardous condition (see Griffin v. PMV Realty, LLC, 181 A.D.3d at 913, 119 N.Y.S.3d 876 ; Hanney v. White Plains Galleria, LP, 157 A.D.3d 660, 68 N.Y.S.3d 522 ). The defendants failed to submit evidence regarding specific cleaning or inspection of the area of the plaintiff's fall relative to the time when the accident occurred (see Butts v. SJF, LLC, 171 A.D.3d 688, 689–690, 97 N.Y.S.3d 219 ; Sartori v. JP Morgan Chase Bank, N.A., 127 A.D.3d 1157, 7 N.Y.S.3d 548 ). Moreover, there are triable issues of fact as to whether the defendants had actual knowledge of a recurring dangerous condition in the specific area of the basketball court where the plaintiff fell (see Edwards v. Great Atl. & Pac. Tea Co., Inc., 71 A.D.3d 721, 895 N.Y.S.2d 723 ; Mauge v. Barrow St. Ale House, 70 A.D.3d at 1017, 895 N.Y.S.2d 499 ; Lemonda v. Sutton, 268 A.D.2d 383, 702 N.Y.S.2d 275 ; cf. Pagan v. New York City Hous. Auth., 172 A.D.3d 888, 101 N.Y.S.3d 168 ; Toussaint v. Ocean Ave. Apt. Assoc., LLC, 144 A.D.3d 664, 40 N.Y.S.3d 508 ; McGee v. New York City Hous. Auth., 122 A.D.3d 695, 995 N.Y.S.2d 724 ).
Although the Supreme Court did not decide the issue of whether the defendants established their entitlement to summary judgment dismissing the amended complaint under the doctrine of primary assumption of risk, the defendants may properly raise the issue as an alternative ground for reversal where, as here, the defendants moved for summary judgment on this ground, and the issue was fully argued by the parties in their motion papers (see Rodriguez v. New York City Hous. Auth., 169 A.D.3d 947, 94 N.Y.S.3d 318 ).
Under the doctrine of primary assumption of risk, "by engaging in a sport or recreational activity, a participant consents to those commonly appreciated risks which are inherent in and arise out of the nature of the sport generally and flow from such participation" ( Morgan v. State of New York, 90 N.Y.2d 471, 484, 662 N.Y.S.2d 421, 685 N.E.2d 202 ; see Custodi v. Town of Amherst, 20 N.Y.3d 83, 88, 957 N.Y.S.2d 268, 980 N.E.2d 933 ; M.P. v. Mineola Union Free Sch. Dist., 166 A.D.3d 953, 88 N.Y.S.3d 479 ; Zachary G. v. Young Israel of Woodmere, 95 A.D.3d 946, 946, 944 N.Y.S.2d 203 ). "Risks inherent in a sporting activity are those which are known, apparent, natural, or reasonably foreseeable consequences of the participation" ( Mamati v. City of N.Y. Parks & Recreation, 123 A.D.3d 671, 672, 997 N.Y.S.2d 731 ; see Morgan v. State of New York, 90 N.Y.2d at 484, 662 N.Y.S.2d 421, 685 N.E.2d 202 ).
Assumption of risk is not an absolute defense but a measure of the defendant's duty of care (see Turcotte v. Fell, 68 N.Y.2d 432, 439, 510 N.Y.S.2d 49, 502 N.E.2d 964 ; Franco v. 1200 Master Assn., Inc., 177 A.D.3d 858, 112 N.Y.S.3d 200 ). The defendant's duty is " ‘to exercise care to make the conditions as safe as they appear to be. If the risks of the activity are fully comprehended or perfectly obvious, [the participant] has consented to them and defendant has performed its duty’ " ( Laurent v. Town of Oyster Bay, 163 A.D.3d 544, 545, 79 N.Y.S.3d 638, quoting Turcotte v. Fell, 68 N.Y.2d at 439, 510 N.Y.S.2d 49, 502 N.E.2d 964 ; see Brown v. City of New York, 69 A.D.3d 893, 893, 895 N.Y.S.2d 442 ). "This includes risks associated with the construction of the playing surface and any open and obvious condition on it," including less than optimal conditions ( Brown v. Roosevelt Union Free Sch. Dist., 130 A.D.3d 852, 853–854, 14 N.Y.S.3d 140 ; see Ziegelmeyer v. United States Olympic Comm., 7 N.Y.3d 893, 826 N.Y.S.2d 598, 860 N.E.2d 60 ; Sykes v. County of Erie, 94 N.Y.2d 912, 707 N.Y.S.2d 374, 728 N.E.2d 973 ; Simone v. Doscas, 142 A.D.3d 494, 35 N.Y.S.3d 720 ; Joseph v. New York Racing Assn., 28 A.D.3d 105, 107, 809 N.Y.S.2d 526 ). However, participants are not deemed to have assumed risks that are concealed or unreasonably increased over and above the usual dangers that are inherent in the sport (see Custodi v. Town of Amherst, 20 N.Y.3d at 88, 957 N.Y.S.2d 268, 980 N.E.2d 933 ; Morgan v. State of New York, 90 N.Y.2d at 485, 662 N.Y.S.2d 421, 685 N.E.2d 202 ; M.P. v Mineola Union Free School Dist., 166 A.D.3d at 954, 88 N.Y.S.3d 479 ).
Here, the defendants failed to make a prima facie showing of entitlement to judgment as a matter of law based upon the doctrine of primary assumption of risk. The hazardous condition of an interior gym floor wet from a leaking roof was not open and obvious, and created a risk beyond those inherent in the sport of basketball (see Morgan v. State of New York, 90 N.Y.2d at 488–489, 662 N.Y.S.2d 421, 685 N.E.2d 202 ).
The parties' remaining contentions are without merit.
Accordingly, we agree with the Supreme Court's determination to deny the defendants' motion for summary judgment dismissing the amended complaint.
CHAMBERS, J.P., MALTESE, CHRISTOPHER and WOOTEN, JJ., concur.