Summary
In Castro v City of New York (2012) 94 A.D.3d 1032, 1033, the plaintiff could not recover for injuries sustained when he fell on a raised sewer drain while playing softball on a cement yard.
Summary of this case from Big League Dreams Chino Hills, LLC v. Superior Court (Brian Hutchison)Opinion
2012-04-24
Henry CASTRO, appellant, v. CITY OF NEW YORK, et al., respondents.
Roth & Roth, LLP, New York, N.Y. (David A. Roth of counsel), for appellant. Michael A. Cardozo, Corporation Counsel, New York, N.Y. (Victoria Scalzo and Michael Shender of counsel), for respondents.
Roth & Roth, LLP, New York, N.Y. (David A. Roth of counsel), for appellant. Michael A. Cardozo, Corporation Counsel, New York, N.Y. (Victoria Scalzo and Michael Shender of counsel), for respondents.
DANIEL D. ANGIOLILLO, J.P., THOMAS A. DICKERSON, ARIEL E. BELEN, and L. PRISCILLA HALL, JJ.
In an action to recover damages for personal injuries, the plaintiff appeals, as limited by his brief, from so much of an order of the Supreme Court, Kings County (Miller, J.), dated September 27, 2010, as, upon renewal, adhered to so much of an original determination in an order of the same court dated October 26, 2009, as granted that branch of the defendants' cross motion which was for summary judgment dismissing the complaint.
ORDERED that the order dated September 27, 2010, is affirmed insofar as appealed from, with costs.
In 2006, the plaintiff was playing softball on a cement ballfield owned by the City of New York when he allegedly tripped over a raised sewer grate, sustaining personal injuries. The plaintiff commenced this action against the City and the New York City Parks Department (hereinafter together the City), alleging negligence. At his examination before trial, the plaintiff acknowledged that he had played at least 40 softball games on the subject ballfield prior to the date of his accident, he was aware of the presence and condition of the raised sewer grate prior to the date of his accident, and he had always been “leery” of the grate because he believed that it posed a tripping hazard.
In an order dated October 26, 2009, the Supreme Court, inter alia, granted that branch of the City's cross motion which was for summary judgment dismissing the complaint on the ground that the plaintiff had assumed the risk of injury. After the Court of Appeals issued its ruling in Trupia v. Lake George Cent. School Dist. (14 N.Y.3d 392, 901 N.Y.S.2d 127, 927 N.E.2d 547), the plaintiff moved, among other things, for leave to renew his opposition to the City's cross motion on the ground that Trupia set forth a change in the law regarding assumption of risk that precluded an award of summary judgment in the City's favor. The Supreme Court granted leave to renew, and, upon renewal, adhered to so much of its original determination as found that the City was entitled to summary judgment.
The principle of primary assumption of risk extends to those risks associated with the construction of a playing field and any open and obvious condition thereon ( see Sykes v. County of Erie, 94 N.Y.2d 912, 913, 707 N.Y.S.2d 374, 728 N.E.2d 973;Palladino v. Lindenhurst Union Free School Dist., 84 A.D.3d 1194, 1195, 924 N.Y.S.2d 474;Brown v. City of New York, 69 A.D.3d 893, 895 N.Y.S.2d 442; Manoly v. City of New York, 29 A.D.3d 649, 649–650, 816 N.Y.S.2d 499). “Where, as here, the risks are known by or perfectly obvious to the player, he or she has consented to them, and the property owner has discharged its duty of care by making the conditions as safe as they appear to be” ( Palladino v. Lindenhurst Union Free School Dist., 84 A.D.3d at 1195, 924 N.Y.S.2d 474). Here, the City demonstrated its prima facie entitlement to judgment as a matter of law by establishing that the plaintiff assumed the risk of injury by voluntarily participating in the softball game despite his knowledge that doing so could bring him into contact with the open and obvious raised sewer grate ( id.; see Brown v. City of New York, 69 A.D.3d at 893–894, 895 N.Y.S.2d 442).
In opposition, the plaintiff failed to raise a triable issue of fact. Contrary to the plaintiff's contention, Trupia, which involved an infant plaintiff who sustained injuries while allegedly engaged in unsupervised “horseplay” at his school (14 N.Y.3d at 396, 901 N.Y.S.2d 127, 927 N.E.2d 547), does not mandate reversal of the Supreme Court's order. Moreover, the most recent affidavit submitted by the plaintiff contradicts numerous material statements made by him at his examination before trial, and “was clearly designed to raise a feigned factual issue in the hope of avoiding the consequences of his ... earlier testimony” ( Joseph v. New York Racing Assn., 28 A.D.3d 105, 114, 809 N.Y.S.2d 526).
Accordingly, upon renewal, the Supreme Court properly adhered to so much of the original determination as granted that branch of the defendants' cross motion which was for summary judgment dismissing the complaint.