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Swan v. City of New York

Appellate Division of the Supreme Court of New York, Second Department
May 8, 2000
272 A.D.2d 394 (N.Y. App. Div. 2000)

Opinion

Argued March 31, 2000.

May 8, 2000.

In an action to recover damages for personal injuries, the defendants appeal from (1) a judgment of the Supreme Court, Kings County (Kramer, J.), entered April 13, 1999, which, upon a jury verdict, is in favor of the plaintiff and against them in the principal sum of $299,000, and (2) a resettled judgment of the same court, entered June 29, 1999, granting the same relief.

Michael D. Hess, Corporation Counsel, New York, N.Y. (Francis F. Caputo and Dona B. Morris of counsel), for appellants.

Sivin Miller, New York, N.Y. (Edward Sivin of counsel), for respondent.

FRED T. SANTUCCI, J.P., LEO F. McGINITY, DANIEL F. LUCIANO, ROBERT W. SCHMIDT, JJ.


DECISION ORDER

ORDERED that the appeal from the judgment is dismissed as the judgment was superseded by the resettled judgment; and it is further,

ORDERED that the resettled judgment is affirmed; and it is further,

ORDERED that the respondent is awarded one bill of costs.

The plaintiff sustained injuries after stepping in a hole while playing basketball on a court located in a New York City park. Because the hole was concealed by growing vegetation, the plaintiff could not have assumed the risk as a matter of law (see, Morgan v. State of New York, 90 N.Y.2d 471; Benitez v. New York City Bd. of Educ., 73 N.Y.2d 650; Warren v. Town of Hempstead, 246 A.D.2d 536). Furthermore, the jury verdict was not against the weight of the evidence (see, Nicastro v. Park, 113 A.D.2d 129).

SANTUCCI, J.P., McGINITY, LUCIANO and SCHMIDT, JJ., concur.


Summaries of

Swan v. City of New York

Appellate Division of the Supreme Court of New York, Second Department
May 8, 2000
272 A.D.2d 394 (N.Y. App. Div. 2000)
Case details for

Swan v. City of New York

Case Details

Full title:JOSEPH SWAN, respondent, v. CITY OF NEW YORK, et al., appellants

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

Date published: May 8, 2000

Citations

272 A.D.2d 394 (N.Y. App. Div. 2000)
707 N.Y.S.2d 480

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