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Brown v. City of New York

Appellate Division of the Supreme Court of New York, Second Department
Jun 4, 1998
251 A.D.2d 361 (N.Y. App. Div. 1998)

Opinion

June 4, 1998

Appeal from the Supreme Court, Queens County (Polizzi, J.).


Ordered that the order is reversed, on the law, with costs, the motion is granted, and the complaint is dismissed.

It is well settled that "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" (see, Morgan v. State of New York, 90 N.Y.2d 471, 484). This encompasses risks associated with the construction of the playing field, and any open and obvious conditions on it (see, Maddox v. City of New York, 66 N.Y.2d 270, 277; Garafola v. City of New York, 247 A.D.2d 581; Walner v. City of New York, 243 A.D.2d 629). Here, the parties' submissions, which included the plaintiff's testimony at the hearing held pursuant to General Municipal Law § 50-h, and photographs depicting the accident site, reveal that the hole in the paved surface of the subject basketball court was clearly visible. Since the plaintiff voluntarily chose to play on a court surface whose faulty condition was open and obvious, he assumed the risk of injury from stepping into a hole or depression (see, Walner v. City of New York, supra; McKey v. City of New York, 234 A.D.2d 114; Touti v. City of New York, 233 A.D.2d 496). Accordingly, the defendant's motion for summary judgment is granted.

Rosenblatt, J. P., Sullivan, Joy, Altman and Luciano, JJ., concur.


Summaries of

Brown v. City of New York

Appellate Division of the Supreme Court of New York, Second Department
Jun 4, 1998
251 A.D.2d 361 (N.Y. App. Div. 1998)
Case details for

Brown v. City of New York

Case Details

Full title:CARLTON BROWN, Respondent, v. CITY OF NEW YORK, Appellant

Court:Appellate Division of the Supreme Court of New York, Second Department

Date published: Jun 4, 1998

Citations

251 A.D.2d 361 (N.Y. App. Div. 1998)
674 N.Y.S.2d 82

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