Ortiz v City of New York

Ortiz v City of New York 2012 NY Slip Op 08423 Decided on December 6, 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 December 6, 2012
Tom, J.P., Mazzarelli, Moskowitz, Abdus-Salaam, Feinman, JJ.
8739 20120/07

[*1]John J. Ortiz, Jr., an Infant by his Mother and Natural Guardian Carmen Felix, et al., Plaintiffs-Appellants,

v

The City of New York, Defendant-Respondent.




The Law Office of Judah Z. Cohen, PLLC, New York (Judah Z.
Cohen of counsel), for appellants.
Michael A. Cardozo, Corporation Counsel, New York (Deborah
A. Brenner of counsel), for respondent.

Order, Supreme Court, Bronx County (Julia I. Rodriguez, J.), entered January 11, 2012, granting defendant's motion for summary judgment and dismissing the complaint, unanimously affirmed, without costs.

In this action for personal injuries sustained by the then 13-year old plaintiff while playing basketball on an outdoor court at a park owned by defendant City of New York, defendant made a prima facie showing of entitlement to judgment as a matter of law based on the doctrine of assumption of risk (see Morgan v State of New York, 90 NY2d 471, 482-486 [1997]). The risks assumed by the infant plaintiff included those created by the gaps in the playing surface. In opposition, plaintiff failed to raise a triable issue of fact.

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

ENTERED: DECEMBER 6, 2012

CLERK