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Garay v. Saint Joseph's Roman Catholic Church

Supreme Court, Nassau County
May 22, 2018
2018 N.Y. Slip Op. 34434 (N.Y. Sup. Ct. 2018)

Opinion

Index No. 603836/15 Sequence Nos. 001

05-22-2018

HENRY GARAY, Plaintiff, v. SAINT JOSEPH'S ROMAN CATHOLIC CHURCH, Defendant.


Unpublished Opinion

MOTION DATE: 3/29/18

PRESENT: HON. ANTHONY L. PARGA, JUSTICE

Anthony L. Parga, Judge

Notice of Motion, Affm., & Exhs........................................................................................... 1

Affirmation in Opposition, Affm., & Exhs........................................................................... 2

Reply Affirmation....................................................................................... 3

Upon the foregoing papers, the motion by defendant Saint Joseph's Roman Catholic Church (hereinafter as "St. Joseph's") which seeks an order pursuant to CPLR §3212 for summary judgment dismissing plaintiffs complaint is determined as follows.

The within action seeks damages for personal injuries sustained by plaintiff during a basketball game at defendant's gymnasium on March 12, 2015, located at 1346 Broadway, Hewlett, New York 11557. It is alleged, inter alia, in plaintiffs Verified Bill of Particulars that plaintiffs injuries were caused by a defective dangerous condition at the premises and, more specifically, that the platform/stage was under and in close proximity to the backboard, basket and out-of-bounds line.

Plaintiff testified that he had been playing on the Mercy First Basketball team since 2013. Plaintiff testified that on the day of the incident he was at St. Joseph's for a league playoff game. He recalled seeing the stage and the wall in front of the stage prior to the game. Plaintiff testified that at the start of game he stole the ball and went on a fast break to the basket, laid it up with his right hand and as he was coming down the stage was right in front of him and his right side from his hip down went crashing into the stage.

Defendant moves for summary judgment contending that the plaintiffs claims are barred by the doctrine of primary assumption of risk and that the condition was open and obvious.

In support of its application defendant submits, inter alia, the deposition transcript of plaintiff; the deposition transcript and affidavit of Robert P. Ryan, Facilities Manager at St. Joseph's Parish; the deposition transcript of non-party witness Jeffery McBride; the deposition transcript of non-party witness Anne Gildea and various color photographs.

Robert Ryan, Facilities Manager for eleven (11) years at St. Joseph's Parish testified that the gym was mostly used for Catholic Youth Organization (CYO) and that CYO has used it for the past eleven (11) years for basketball games. He testified he had little or no involvement with CYO and the basketball league. Mr. Ryan could not provide the dimensions of the stage or its distance from the baseline of the basketball court. He testified that there are four (4) pads permanently affixed to the front of the stage. Mr. Ryan attests in his affidavit that there were no complaints made to the Church concerning the condition or layout of the gym, and that he is not aware of any accident having occurred involving a player being injured due to the presence of the stage or its proximity to the baseline.

Jeffery McBride, the coach of the CYO team in which plaintiff played, did not notice nor report any dangerous condition to the referee on the date of the incident prior to the game. He was not aware of anyone else having an accident at this gym prior to plaintiff. He did not know measurements between baseline and stage but did recall the stage being padded. He testified that the game continued after plaintiffs accident.

Defendant contends that plaintiff assumed the risk of participating in the game, that the risk of colliding with the stage was inherent in and arising out of the nature of the sport and that there was no duty owed to plaintiff as the stage was an open and obvious condition.

In opposition, the plaintiff submits the affidavit of its safety expert, Leo DeBobes. Mr. DeBobes reviewed various documents pertaining to this litigation, conducted a physical inspection of the premises and issues a letter report containing his findings and opinions.

Mr. DeBobes opines that the distance between the basketball court and line boundary and the padded section of the stage wall was 27 15/16 inches which is significantly less than the three (3) foot minimum established by the National Federation of High School Association Basketball Rules Book or the six (6) foot minimum established by that American Alliance for Healthy Physical Education, Recreation and Dance (AHPERD). Mr. DeBobes states that an inadequate safety or buffer zone presents a foreseeable risk of injury. Mr. DeBobes further opines that the defendant was negligent in allowing and/or permitting the basketball court to exist without properly installed and maintained wall padding.

"Summary judgment...is designed to expedite civil cases by eliminating claims which can properly be resolved as a matter of law (see Andre v Pomery, 35 N.Y.2d 361, 320 N.E.2d 853, 362 N.Y.S.2d 131). It is a drastic remedy which should only be employed when there is no doubt as to the absence of triable issues..." (Pizzo-Juliano v. Southside Hospital, 129 A.D.3d 695, 696, 10 N.Y.SJd572 [2ndDept. 2015]).

If there is any doubt as to the existence of a triable issue of fact, or if a material issue of fact is arguable, summary judgment should be denied. (Dykeman v. Heht, 52 A.D.3d 767, 861 N. Y.S.2d 732 [2ndDept. 2008] Celardo v. Bell, 222 A.D.2d547, 635 N.Y.S.2d 85 [2dDept. 1995]; Museums at Stony Brook v. Village of Patchogue Fire Dept., 146 A.D.2d 572, 536 N.Y.S.2d 177 [2d Dept. 1989]).

Contrary to movant's contentions, there are questions of fact surrounding the design/layout of the basketball court and its safety which preclude the granting of summary judgment.

Accordingly, defendants motion for summary judgment is denied.

This constitutes the decision and Order of this Court. Any request for relief not expressly granted herein is denied.


Summaries of

Garay v. Saint Joseph's Roman Catholic Church

Supreme Court, Nassau County
May 22, 2018
2018 N.Y. Slip Op. 34434 (N.Y. Sup. Ct. 2018)
Case details for

Garay v. Saint Joseph's Roman Catholic Church

Case Details

Full title:HENRY GARAY, Plaintiff, v. SAINT JOSEPH'S ROMAN CATHOLIC CHURCH, Defendant.

Court:Supreme Court, Nassau County

Date published: May 22, 2018

Citations

2018 N.Y. Slip Op. 34434 (N.Y. Sup. Ct. 2018)