Opinion
7661 Index 158874/12
11-20-2018
Rory MARTIN, et al., Plaintiffs–Appellants, v. The CITY OF NEW YORK, Defendant–Respondent.
The Taub Law Firm, P.C., New York (Bruce E. Wingate of counsel), for appellants. Zachary W. Carter, Corporation Counsel, New York (Diana Lawless of counsel), for respondent.
The Taub Law Firm, P.C., New York (Bruce E. Wingate of counsel), for appellants.
Zachary W. Carter, Corporation Counsel, New York (Diana Lawless of counsel), for respondent.
Renwick, J.P., Richter, Tom, Kern, Oing, JJ.
Plaintiff Rory Martin was injured when, while playing softball on defendant's field, he unsuccessfully attempted to jump over a hole that was in the field near home plate. Plaintiff testified at his 50–h hearing that a six-inch-deep hole, three-to-four feet long, and four-to-five feet wide, near the right hand batter's box, had been filled in with loose clay and appeared to be level when he stepped into the batter's box. After plaintiff safely reached first base and additional players used the batter's box, the hole became more exposed and surprised plaintiff as he ran home to try to score. When plaintiff saw the size of the hole and attempted to jump over it, his left foot struck a clay-obscured edge of the hole, causing him to suffer a fractured ankle.
Under the circumstances presented, triable issues exist as to whether the City had notice of this particular defect, and, if so, whether the City negligently or improperly repaired the defect, whether the playing field was as safe as it appeared to be, whether plaintiff's injury arose as a consequence of a condition or practice common to the particular sport, and whether plaintiff assumed the risk of playing on the subject field (see Zelkowitz v. Country Group, Inc. , 142 A.D.3d 424, 427–428, 36 N.Y.S.3d 32 [1st Dept. 2016] ; Henig v. Hofstra Univ. , 160 A.D.2d 761, 553 N.Y.S.2d 479 [2d Dept. 1990] ).