Benolol v City of New York

Benolol v City of New York 2012 NY Slip Op 02426 Decided on April 3, 2012 Appellate Division, First Department Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. This opinion is uncorrected and subject to revision before publication in the Official Reports.

Decided on April 3, 2012
Friedman, J.P., DeGrasse, Freedman, Abdus-Salaam, JJ.
7246 107244/10

[*1]Samuel Benolol, Plaintiff-Appellant, The

v

City of New York, et al., Defendants-Respondents.




Frekhtman & Associates, Brooklyn (Andrew Green of
counsel), for appellant.
Michael A. Cardozo, Corporation Counsel, New York (Marta
Ross of counsel), for respondents.

Order, Supreme Court, New York County (Cynthia S. Kern, J.), entered February 10, 2011, which granted defendants' motion for summary judgment dismissing the complaint, unanimously affirmed, without costs, and the motion denied.

Plaintiff was injured while playing soccer when he tripped over an uneven portion of the artificial turf field. Plaintiff testified that prior to his fall, he had not noticed the allegedly defective condition over which he fell.

While "the doctrine of assumption of the risk does not exculpate a landowner from liability for ordinary negligence in maintaining a premises" (Sykes v County of Erie, 94 NY2d 912, 913 [2000]), here defendants established as a matter of law that the uneven condition of the artificial turf was open and obvious, and was not the result of their negligence in maintaining the field (see Ashbourne v City of New York, 82 AD3d 461, 463 [2011]; Simmons v Saugerties Cent. School Dist., 82 AD3d 1407, 1409-1410 [2011]; Maddox v NYC, 66 NY2d 270 [1985]).

THIS CONSTITUTES THE DECISION AND ORDER
OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.

ENTERED: APRIL 3, 2012

CLERK