Opinion
November 29, 1965
Appeal in a personal injury action from a judgment of the Supreme Court at Trial Term entered upon an order granting defendant's motion for a nonsuit at the close of plaintiff's case. On Sunday morning, February 12, 1961, plaintiff, a dues-paying member, was injured while participating in a game of basketball in the gymnasium of the new recreational facility owned and operated by defendant in the City of Albany, New York. The court in use at the time was a large rectangular one designed to permit contemporaneous play of the same sport by other members of the Community Center. On the day of the injury two teams thus composed were so engaged. A game of volleyball was also going on and several teen-agers were shooting baskets. Their basketball entered the area of plaintiff's activity where one of them, bent on retrieving it, came in contact with plaintiff's heel causing an injury to his achilles' tendon. When injured plaintiff was 41 yeas of age. His testimony indicated that he had frequented the gymnasium regularly, was aware of the playing conditions which prevailed on Sunday mornings, the hazard of injury which they entailed and that he chose to continue the activity despite the presence of ball-shooting teen-agers whose use of the court, of which he complains, was permitted by defendant to encroach upon the time period reserved for older men. No issue was raised with respect to the failure of defendant to plead the doctrine of assumption of risk. Under the facts the court below was justified in finding that the plaintiff was guilty of contributory negligence and must be deemed to have assumed the risks inherent in the uses to which the gymnasium was put on the morning of his injury. ( Maltz v. Board of Educ. of City of N.Y., 32 Misc.2d 492, affd. 282 App. Div. 888; Lobsenz v. Rubinstein, 258 App. Div. 164, affd. 283 N.Y. 600; McGee v. Board of Educ. of City of N.Y., 16 A.D.2d 99, app. den. 19 A.D.2d 526, app. dsmd. 12 N.Y.2d 1100, mot. for lv. to app. den. 13 N.Y.2d 596; Luftig v. Steinhorn, 21 A.D.2d 760, affd. 16 N.Y.2d 568.) In dismissing the complaint Trial Term did not err. Judgment affirmed, without costs. Herlihy, J.P., Reynolds, Taylor, Aulisi and Hamm, JJ., concur.