Judge v City of New York

Judge v City of New York 2012 NY Slip Op 08787 Decided on December 20, 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 20, 2012
Andrias, J.P., Saxe, Moskowitz, Freedman, Abdus-Salaam, JJ.
8842 301922/07

[*1]Richard Judge, Plaintiff-Appellant, The

v

City of New York, Defendant-Respondent.




Alan D. Levin, Kew Gardens, for appellant.
Michael A. Cardozo, Corporation Counsel, New York (Dona B.
Morris of counsel), for respondent.

Order, Supreme Court, Bronx County (Julia I. Rodriguez, J.), entered October 6, 2011, which granted defendant's motion for summary judgment dismissing the complaint, unanimously affirmed, without costs.

The complaint was properly dismissed in this action where the incarcerated plaintiff was injured while playing basketball on an outdoor court. Plaintiff fractured his ankle when he jumped and landed on a defect in the pavement, which had created a significant unevenness in the playing surface. Plaintiff was aware of the defect in the pavement before the day of his accident.

It is well established that "[b]y engaging in a sport or recreational activity, a participant consents to those commonly appreciated risks which are inherent in and arise out of the nature of the sport generally and flow from such participation" (Morgan v State of New York, 90 NY2d 471, 484 [1997]). Here, plaintiff assumed the risk of injury by voluntarily playing basketball on the outdoor court and the risks inherent in the sport (see Green v City of New York, 263 AD2d 385 [1st Dept 1999]).

Plaintiff, relying on Trupia v Lake George Cent. School
Dist. (14 NY3d 392, 396 n 1 [2010]), argues that the assumption of the risk doctrine should not be applied because he did not "freely and knowingly consent[]" to the risks of playing basketball on the outdoor court, as that was the only recreational activity available to him. Plaintiff's [*2]contention is belied by his testimony at the General Municipal Law § 50-h hearing.

We have considered plaintiff's remaining contentions and find them unavailing.

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

ENTERED: DECEMBER 20, 2012

CLERK