Summary
In Ryder v. Town of Lancaster, 289 A.D.2d 995, 735 N.Y.S.2d 312 [4th Dept. 2001], the plaintiff was playing volleyball on a grass court maintained by one of the defendants.
Summary of this case from Ninivaggi v. Cnty. of NassauOpinion
(1585) CA 01-01630
December 21, 2001.
Appeal from Order of Supreme Court, Erie County, Gorski, J. — Summary Judgment.)
PRESENT: PIGOTT, JR., P.J., HAYES, WISNER, SCUDDER AND BURNS, JJ.
Order unanimously affirmed without costs. Memorandum:
Supreme Court properly denied defendant's motion seeking summary judgment dismissing the complaint pursuant to the doctrine of assumption of risk. Plaintiffs commenced this action seeking damages for injuries sustained by plaintiff Jerry G. Ryder when he stepped in a six-to eight-inch-deep hole while playing volleyball on a grass court maintained by defendant in Keysa Town Park. The doctrine of assumption of risk "does not exculpate a landowner from liability for ordinary negligence in maintaining a premises" ( Sykes v. County of Erie, 94 N.Y.2d 912, 913). Thus, although defendant met its initial burden, we conclude that plaintiffs raised a triable issue of fact whether defendant breached a continuing duty to keep the grass court in good repair ( see, Siegel v. City of New York, 90 N.Y.2d 471, 488-489).