Braithwaite v State of New York

[*1] Braithwaite v State of New York 2009 NY Slip Op 52761(U) [26 Misc 3d 1239(A)] Decided on June 26, 2009 Ct Cl McCarthy, J. Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. This opinion is uncorrected and will not be published in the printed Official Reports.

Decided on June 26, 2009
Ct Cl

Robert Braithwaite, Claimant,

against

State of New York, Defendant.



109578



Claimant's attorney:

Robert W. Nishman, Esq.

By: Schneider Kaufman & Sherman, P.C.

By: Howard B. Sherman, Esq.

Defendant's attorney:

Andrew M. Cuomo

Attorney General of the State of New York

By: Joseph Paterno, Esq., AAG

Christopher J. McCarthy, J.

The Court finds, by a preponderance of the credible evidence, that Defendant is 50% responsible for personal injuries sustained by Claimant, Robert Braithwaite, on June 7, 2003 when he slipped, tripped and fell while playing basketball in the upper gymnasium at Arthur Kill Correctional Facility ("Arthur Kill"), located in Staten Island, New York. The State failed to address a dangerous condition of which it had notice. The Court also concludes, by a preponderance of the credible evidence, that Claimant is 50% responsible for his injury on account of his decision to play basketball on the defective court. Claimant alleges that, as a result of his fall, his ankle fractured.

A bifurcated trial, addressing liability issues only, was held on February 10, 2009 in New York, New York. There were three witnesses: Claimant; Michael Brown, a witness to the accident; [*2]and Gerald Carlo, a special education teacher at Arthur Kill. Thereafter, the parties requested and were granted additional time to submit post-trial memoranda.

FACTS

The two eyewitnesses, Claimant and Michael Brown, a fellow inmate and basketball player, agree about the particulars of the accident. A basketball game had been in progress for about 45 minutes on the one full basketball court in Arthur Kill's upper gym (Tr., pp. 9-10). Mr. Brown testified that he was standing about 18 feet away from Claimant, who, in turn, was located 15 or 20 feet from the basket, toward the base line (Tr., pp. 19-20). Claimant was defending against another player who had the ball. Mr. Brown remembered Claimant "jumping up in the air and coming down and landing on the floor" (Tr., p. 10). He did not recall any contact between Claimant and the player he was defending against at the time that Mr. Braithwaite left his feet (Tr., pp. 20-21). Claimant testified, "I jumped up in the air to intercept the pass. And I fell. My [left] heel went into the hole and I fell. I fell. I fell on my left side and I sat up. And when I sat up, I [saw] the hole right there" (Tr., p. 29; see also p. 37). Claimant agreed that it was the only hole on that portion of the basketball court (Tr., p. 38). Mr. Brown said that, when the players came over to check on Claimant, "you could see there was a hole in the floor" where he was sitting (Tr., p. 11).

Mr. Brown described the hole as a missing "piece of slat," measuring about five inches long and perhaps two inches wide (Tr., p. 11). He said that the area was "worn" and that "the hole had been there a while" (Tr., p. 11). Claimant also said that a portion of board "wasn't on the floor," which he reckoned to be perhaps three or four inches long, two inches wide, and an inch or two deep (Tr., p. 30). Mr. Brown did not see Claimant's foot land in the hole, but said that he was lying right next to it when Mr. Brown went over to him (Tr., pp. 11-12, 22-23). Claimant, likewise, testified that he did not actually see his heel go into the hole because his eyes were on the ball, "but I felt it," and when he sat up he saw "a hole right next to my foot" (Tr., p. 30; see also p. 37). Several players carried Claimant down stairs and he was taken to the infirmary.

Claimant and Mr. Brown both testified that they had played basketball on that court many times prior to June 7, 2003 (Tr., pp. 18-19, 31). Neither witness could say that he had seen the particular hole prior to the date of the accident, but each said there were several holes on that floor (Tr., pp. 13, 32, 36). Claimant testified "[t]o be honest with you, the floor was in bad shape. There [were] holes all over the floor" (Tr., pp. 32-33). They both agreed that they voluntarily chose to go to the gym that day to play basketball (Tr., pp. 23-24, 37). Mr. Brown also agreed that inmates had a choice as to whether to go to an outdoor yard or to the gymnasium for recreation (Tr., p. 17). Claimant noted, however, that the "outdoor court was in worse condition than the indoor . . . Listen, nobody would be playing outside, it was a cement floor with a whole bunch of holes and pitches and valleys and nobody played outside" (Tr., pp. 33-34). Both witnesses agreed that: the gym was not cordoned off; prisoners were not prohibited from using it; and there were no warning signs to watch for holes in the floor (Tr., pp. 24, 34).

Gerald Carlo had been a special-needs teacher at Arthur Kill for 27 years in June 2003. In the months preceding the accident, Mr. Carlo had been asked by Arthur Kill's administration to be on the facility's health and safety committee. In that capacity, he inspected the gym and was asked to provide a layperson's assessment of health and safety issues in that portion of the facility, where he did not normally have occasion to visit.

He filed monthly safety and environmental services inspection reports in February, March, [*3]May, and again in June 2003 containing his observations (Tr., pp. 42, 44-45; see Exs. 1-4). The written reports cite the gym floor as a safety hazard, in poor condition, with holes and weak spots in the floor (Exs. 1-4). Mr. Carlo testified that, if he saw more than nine holes, then he noted holes in the gym floor on his reports, though he did not keep records of the exact number, size, depth or location of those holes (Tr., pp. 52, 54). He based his observations upon walks around the perimeter of the gym because there were always a couple of hundred inmates in the gym playing basketball, handball, or exercising, when he made his inspections (though he agreed that only 10 people would play on the basketball court during a game). He stated that, for security reasons, he was not allowed to visit the gym at other times (Tr., pp. 51, 64-66, 70). Mr. Carlo also made oral reports to the committee, chaired by Kathleen Gerbing, Arthur Kill's Deputy for Administration (Tr., p. 47).

LAW

To establish a prima facie case of negligence, Claimant must demonstrate by a preponderance of the credible evidence that: (1) Defendant owed Claimant a duty of care; (2) a breach of that duty; and (3) Defendant's breach of that duty was a substantial factor in the events that caused the injury suffered by Claimant (see Derdiarian v Felix Contr. Corp., 51 NY2d 308, 315 [1980]; Donohue v Copiague Union Free School Dist., 64 AD2d 29, 32-33 [2d Dept 1978], affd 47 NY2d 440 [1979]; Patrick v State of New York, 11 Misc 3d 296, 320 [Ct Cl 2005]; PJI 2:10, 2:70).

The State has a duty to maintain its facilities "in a reasonably safe condition in view of all the circumstances, including the likelihood of injury to others, the seriousness of the injury, and the burden of avoiding the risk," with foreseeability constituting the measure of liability (Basso v Miller, 40 NY2d 233, 241 [1976], quoting Smith v Arbaugh's Rest., 469 F2d 97, 100, cert denied 412 US 939 [1973]; see Miller v State of New York, 62 NY2d 506, 513 [1984]; Preston v State of New York, 59 NY2d 997, 998 [1983]).

That duty extends to the State's institutions, including its correctional facilities. The State is not an insurer of the safety of its inmates, however, and negligence cannot be inferred solely from the occurrence of an accident (see Killeen v State of New York, 66 NY2d 850 [1985]; Heliodore v State of New York, 305 AD2d 708, 709 [3d Dept 2003]; Bowers v State of New York, 241 AD2d 760 [3d Dept 1997]); Condon v State of New York, 193 AD2d 874 [3d Dept 1993]). Moreover, a claimant has the duty to use reasonable care to observe his or her surroundings, to see what is there to be seen and to avoid accidents (Weigand v United Traction Co., 221 NY 39, 42 [1917]).

In order to establish a breach of that duty in a slip and fall case, it is incumbent upon Claimant to establish that: (1) a dangerous condition existed; (2) Defendant either created the dangerous condition or had actual or constructive notice thereof and failed to alleviate the condition within a reasonable time; and (3) such condition was a substantial factor in the events that caused the injury suffered by Claimant (see Gordon v American Museum of Natural History, 67 NY2d 836, 837 [1986]; Medina v Sears, Roebuck & Co., 41 AD3d 798, 799 [2d Dept 2007]; Borenkoff v Old Navy, 37 AD3d 749, 750 [2d Dept 2007]).

With respect to dangerous or defective conditions, there is no minimal dimension test or per se rule that a defect must be of a certain minimum height or depth in order to be actionable. Rather, it is generally a question for the trier of fact to determine whether such conditions exist based upon "facts presented, including the width, depth, elevation, irregularity and appearance of the defect along with the time, place and circumstance' of the injury" (Trincere v County of Suffolk, 90 NY2d 976, 978 [1997], quoting Caldwell v Village of Is. Park, 304 NY 268, 274 [1952]). Some physical [*4]defects, however, may be too trivial and slight in nature to be actionable (Lamarre v Rensselaer County Plaza Assoc., 303 AD2d 914 [3d Dept 2003]; Guerrieri v Summa, 193 AD2d 647 [2d Dept 1993]). Where the condition is open and obvious, "the condition is a warning in itself" (Tarricone v State of New York, 175 AD2d 308, 309 [3d Dept 1991], lv denied 78 NY2d 862 [1991]; see Herman v State of New York, 94 AD2d 161[2d Dept 1983], affd 63 NY2d 822 [1984]).

"When an injury arises in the context of a sporting activity, the question of assumption of risk must be considered" to determine whether that doctrine precludes or limits liability (Masline v State of New York, Ct Cl, Claim No. 104521, March 31, 2004, Hard, J. [UID No. 2004-032-502]). Two categories of assumption of risk must be distinguished. One "is akin to comparative negligence; it does not bar recovery, but diminishes recovery in the proportion to which [the culpable conduct attributable to a claimant] contributed to the injuries" sustained (Lamey v Foley, 188 AD2d 157, 163 [4th Dept 1993]; see Phelan v State of New York, 11 Misc 3d 151, 166 [Ct Cl 2005]; CPLR 1411). The other, is the "primary" assumption of risk doctrine. It asserts that when claimants voluntarily engage in sporting or recreational activities, they may be deemed to have consented "to those injury-causing events, conditions, and risks which are inherent in the activity" (Cotty v Town of Southampton, __ AD3d __, 2009 NY Slip Op 04020 [2d Dept 2009]). Defendants are relieved from liability "when a consenting participant is aware of the risks; has an appreciation of the nature of the risks; and voluntarily assumes the risks" (Morgan v State of New York, 90 NY2d 471, 484 [1997]; see Turcotte v Fell, 68 NY2d 432, 438-439 [1986]; Jahier v Jahier, 50 AD3d 966, 967 [2d Dept 2008]; Lamey v Foley, 188 AD2d 157, supra at 163). "The doctrine also has been extended to the condition of the playing surface. If an athlete is injured as a result of a defect in, or feature of, the field, court, track, or course upon which the sport is being played, the owner of the premises will be protected by the doctrine of primary assumption of risk as long as [the] risk presented by the condition is inherent in the sport"(Cotty v Town of Southampton, __ AD3d __ , supra; see Maddox v City of New York, 66 NY2d 270, 277-278 [1985]).

As Chief Judge Cardozo stated 80 years ago, "Volenti non fit injuria. One who takes part in such a sport accepts the dangers that inhere in it so far as they are obvious andnecessary" (Murphy v Steeplechase Amusement Co., 250 NY 479, 482 [1929]; see Morgan v State of New York, 90 NY2d 471, supra at 482-483; Benitez v New York City Bd. of Educ., 73 NY2d 650, 657 [1989]).

"As long as the defendant's conduct does not unreasonably increase the risks assumed by the [claimant], the defendant will be shielded by the doctrine of primary assumption of risk" (Cotty v Town of Southampton, __ AD3d __ , supra). A different case prevails, however, where the inherent dangers are "so serious as to justify the belief that precautions of some kind must be taken to avert them" (Murphy v Steeplechase Amusement Co., 250 NY 479, supra at 483). While "knowledge plays a role" in determining whether or not a duty of care is owed, "inherency is the sine qua non" (Morgan v State of New York, 90 NY2d 471, supra at 484; Demelio v Playmakers, Inc., 19 Misc 3d 911, 913-914 [Sup Ct, Kings County 2008], affd __ AD3d __, 2009 NY Slip Op 04852 [2d Dept 2009]). Thus, the rule is qualified to the extent that claimants do not assume risks that result from reckless or intentional acts, or those risks that constitute unique, unnecessary and dangerous conditions "over and above the usual dangers that are inherent in" a sport (Owen v R.J.S. Safety Equip., 79 NY2d 967, 970 [1992]; see Morgan v State of New York, 90 NY2d 471, supra at 485, Turcotte v Fell, 68 NY2d 432, supra at 439, 443; Lamey v Foley, 188 AD2d 157, supra at 164).

Finally, "the doctrine of assumption of risk does not exculpate a landowner from liability for [*5]ordinary negligence in maintaining a premises" (Sykes v County of Erie, 94 NY2d 912, 912 [2000]; Ryder v Town of Lancaster, 289 AD2d 995 [4th Dept 2001]).

DISCUSSION

Upon consideration of all the evidence, including a review of the exhibits and listening to the witnesses testify and observing their demeanor as they did so, the Court finds that Claimant has met his burden, and established by a preponderance of the credible evidence that Defendant was negligent in connection with his fall at Arthur Kill. At the same time, as discussed below, the Court further determines that Claimant must bear equal culpability for his accident. Each of the witnesses provided credible and forthright testimony.

As an initial matter, the Court determines that the primary assumption of risk doctrine does not apply to preclude recovery because a playing surface pockmarked with numerous holes is not a condition inherent to, or normally associated with, the game of basketball as it is played on indoor gymnasium floors. Rather, the Court determines that it is unique, unnecessary and over and above the usual dangers assumed by participants in such a game (see Diaz v State of New York, Ct Cl, Claim No. 107723, April 20, 2007, Mignano, J. [UID 2007-029-016]).

In this regard, the Court distinguishes between the risks inherent to indoor and outdoor basketball courts. It is settled that "the risks of playing upon an irregular surface are inherent in outdoor basketball activities" (Sykes v County of Erie, 94 NY2d 912, 912 [2000] [emphasis supplied]). Such defects are commonly cited in cases concerning outdoor basketball courts (Sykes v County of Erie, 94 NY2d 912, supra [recessed drain]; Lincoln v Canastota Central School District, 53 AD3d 851 [3d Dept 2008] [uneven, "very wavy" pavement, cracks]; Mendoza v Village of Greenport, 52 AD3d 788 [2d Dept 2008] [hole]; Paone v County of Suffolk, 251 AD2d 563 [2d Dept 1998] [cracks and breaks in paved surface].

Indeed, Claimant testified that he did not play on the outdoor basketball court at Arthur Kill because it was "a cement floor with a whole bunch of holes and pitches and valleys" (Tr., pp. 33-34). Many defects inherent to outdoor surfaces made of concrete, asphalt, or blacktop can arise, for example, from prolonged exposure to extreme temperature variations and the ravages of inclement weather. Such conditions are common, perhaps inevitable, risks associated with, and inherent to, such surfaces. Those risks are assumed and must be endured by those who wish to play basketball on outdoor courts.

Some dangers may be common to both outdoor and indoor basketball games, such as the risk of collision with supports used to hold up backboards and hoops (Trevett v City of Little Falls, 24 AD3d 1197 [4th Dept 2005], affd 6 NY3d 884 [2006], appeal denied 7 NY3d 845 [2006] [pole supporting outdoor backboard]; Milea v Our Lady of Miracles R.C. Church, 290 AD2d 424 [2d Dept 2002] [metal cross bar attached to portable indoor basketball hoop]).

To be sure, there are still other, different risks inherent to indoor basketball courts (Ribaudo v La Salle Inst., 45 AD3d 556 [2d Dept 2007], lv denied 10 NY3d 717 [2008] [collision with unpadded wall]; Marturano v State of New York, Ct Cl, Claim No. 102282, June 25, 2003, Midey, J. [UID No. 2003-009-113] [same]; Curriere v State of New York, Ct Cl, Claim No. 103979, September 29, 2004, Patti, J. [UID No. 2004-013-049] [arm struck metal stairs stored near court]; Morant v State of New York, Ct Cl, Claim No. 104530, December 27, 2002, Sise, J. [UID No. 2002-028-510] [collision with radiator near basketball court]).

In each instance, features of the playing surface present certain risks that are inherent to [*6]playing basketball outdoors or indoors, as the case may be, though the nature of those risks may vary according to the context.

By contrast, the Court concludes that Claimant encountered an uncommon defect, one that posed unreasonable risks over and above those typically associated with playing basketball indoors.[FN1] Claimant knew there were holes on the floor of Arthur Kill's gym. As noted above, however, while "knowledge plays a role inherency is the sine qua non" (Morgan v State of New York, 90 NY2d [*7]471, supra at 484). In this regard, "[t]he conditions that exist at similar facilities are relevant" to any inquiry into whether or not Claimant will be held to have assumed a certain risk, as are rules and customs to enhance safety that govern defendant's conduct (Lamey v Foley, 188 AD2d 157, supra at 164, citing Turcotte v Fell, 68 NY2d 432, supra at 440-443). In the Court's view, pitted or broken playing surfaces are not commonly encountered, necessary, or expected features of indoor basketball courts. Mr. Braithwaite's injury was not the result of a risk that was "inherent in and [arose] out of the nature of the sport generally" (Morgan v State of New York, 90 NY2d 471, supra at 484).That result accords with the very similar claim of Diaz v State of New York (Ct Cl [UID 2007-029-016], supra). There, the inmate basketball player was injured when he went up for a rebound and landed on a blister or bubble that formed on the surface of the gymnasium floor as result of water damage. An air pocket or void was created between the top layer of flooring and the layer beneath. Judge Mignano found that the condition of the floor was not an inherent feature of the game of basketball. Thus, recovery was not precluded by the primary assumption of risk doctrine. In another case, evidence that a basketball player slipped on a dimly lit gymnasium floor that was "warped and uneven" with puddles at various locations presented a triable issue of fact, sufficient to preclude summary judgment for defendant, as to whether the player assumed the risk of injury by electing to participate in the practice session (Allwood v CW Post Coll., 190 AD2d 704 [2d Dept 1993]). Similarly, a tennis player was not deemed to have assumed the risk of tripping over a torn vinyl hem at the bottom of a net dividing indoor tennis courts, even though he had been aware of the tear for over two years, because the torn net was not an inherent part of the game (Siegel v City of New York, decided in Morgan v State of New York, 90 NY2d 471, supra at 482, 488-489).

Thus, Defendant's duty to Claimant was not vitiated by the primary assumption of risk doctrine. The State was obliged to maintain the gymnasium floor in a reasonably safe condition since it was wholly foreseeable that inmates would play basketball on a court provided for that purpose.

The Court concludes that the State breached that duty. The Court credits the credible, consistent and unembellished testimony of Claimant and Mr. Brown. The Court determines that Defendant improperly maintained the gymnasium floor. It is satisfied that Claimant stepped into a hole on the court consisting of a missing piece of slat. Further, the Court concludes that a hole of the dimensions described, located on a basketball court, in the context of this Claim, constituted a dangerous condition. Moreover, Defendant does not contest that Claimant had an accident on the basketball court at Arthur Kill on June 7, 2003, and Mr. Braithwaite's uncontroverted proof establishes that the hole was the substantial factor in the events that resulted in his injury.

In order to prove that Defendant is liable to Mr. Braithwaite, however, it is Claimant's burden also to prove that the State had notice that a dangerous condition existed. The record is more than sufficient to establish by a preponderance of the credible evidence that Defendant had such notice.There is no evidence that Defendant created the hole, or that it had actual notice concerning the precise hole in question. There is ample evidence, however, that the State had constructive notice of the existence of the hole. "To constitute constructive notice, a defect must be visible and apparent and it must exist for a sufficient length of time prior to the accident to permit [D]efendant's employees to discover and remedy it" (Gordon v American Museum of Natural History, 67 NY2d 836, supra at 837; see Deveau v CF Galleria at White Plains, LP, 18 AD3d 695 [2d Dept 2005]).

Mr. Carlo's inspection reports noted the poor condition of the gym floor. Among the [*8]deficiencies identified in his June 3, 2003 report (only four days before the accident), were "holes and weak spots in gym floor in numerous places" (Tr., p. 55, Ex. 4). In addition, a number of other exhibits were received in evidence (Exs. 5-11) for the limited purpose of establishing that the State had notice about the condition of the gym floor.[FN2] Each of those documents, which pertain to the inmate grievance program, contain statements about the poor condition of the floor (Ex. 5 [dated March 26, 2001, "gym floor is mess up and that maintenance is aware of the situation of the floor"]; Ex. 6 [dated June 17, 2002, inmate alleges slipped on "a broken piece of wood paneling on the gym floor, while playing basketball"]; Ex. 7 [dated July 8, 2002, inmate grievance review committee recommends the gym floor be repaired]; Ex. 8 [dated July 9, 2002, "[i]nvestigation revealed that upon inspection of gym floor by Fire & Safety Officer and Recreation Supervisor, some areas on the gym floor are in need of repair and should not be played upon"]; Ex. 9 [dated June 26, 2002, indicates request pending to repair a gym floor]; Ex. 10 [dated October 4, 2002, indicates lumber was ordered to repair gym floor]; and Ex. 11 [dated June 3, 2003, inmate asserts a very similar injury "when I had jumped up for the basketball and fell into a 2" x 2" hole on the gymnasium floor. The facility had failed to repair the floor; nor placed warning signs; nor roped off the floor — — by letting prisoners know the floor is damaged and needs to be repaired"]).

The Court concludes that Mr. Carlo's reports, as well as the inmate grievance documents (and regardless of the truth of the various contentions asserted in those latter exhibits), provided the State with constructive notice of alleged defects on the gymnasium floor that needed to be inspected, assessed, and, if necessary, remedied. Mr. Carlo's final report and the last inmate complaint are particularly striking in that each was dated June 3, 2003, four days before Claimant's accident, with the inmate complaint alleging a very similar injury. Moreover, the Court finds unavailing Defendant's contention that it should evade liability because it had no notice of the specific hole that caused Mr. Braithwaite's injury. "The law does not apply so unreasonable a requirement of certitude" (Gramm v State of New York, 28 AD2d 787, 788 [3d Dept 1967], affd 21 NY2d 1025 [1968]). Here, the evidence inexorably leads to the conclusion that the State had numerous warnings of the allegedly poor condition of the gymnasium floor and the basketball court, that the condition had been ongoing for a number of months and years even, and that the condition was "self-evident through a simple visual inspection" of the area (Ehlers v County of Otsego, 12 AD3d 814, 814 [3d Dept 2004]).

The Court concludes that the State was negligent, having breached a duty of care it owed Claimant with respect to a defective condition of which it had constructive notice.

Finally, the Court must return to the assumption of risk doctrine. Even if, as determined above, recovery is not precluded, the other prong of the doctrine, akin to comparative negligence, may diminish recovery in the proportion to which any culpable conduct by Claimant contributed to his injury. While Claimant did not say that he was aware of the specific hole into which he stepped, he clearly knew that the floor "was in bad shape" generally and that there were "holes all over the [*9]floor" (Tr., pp. 32-33). While a landowner has no duty to warn about an open, obvious dangerous condition, it also now is clear that the open and obvious nature of a defect "does not negate a landowner's duty to maintain its premises in a reasonably safe condition, [though it] may raise an issue of fact as to [a claimant's] comparative negligence" (Ruiz v Hart Elm Corp., 44 AD3d 842, 843 [2d Dept 2007]; Cupo v Karfunkel, 1 AD3d 48 [2d Dept 2003]; MacDonald v City of Schenectady, 308 AD2d 125 [3d Dept 2003]). In this instance, the Court concludes that Claimant bears equal responsibility for his own culpable conduct in failing to use reasonable care when he elected to play on a court he knew to be in poor shape, with holes all over it. Accordingly, the Court apportions one-half of the liability for this accident to Claimant.

CONCLUSION

By a preponderance of the credible evidence that was presented, the Court finds Defendant 50% responsible for its failure to address a dangerous condition of which it had notice and Claimant 50% responsible because of his decision to play on a court that he knew to be defective.

All motions and cross-motions are denied as moot. All objections upon which the Court reserved determination during trial, and not otherwise addressed herein, are now overruled.

The Chief Clerk is directed to enter interlocutory judgment accordingly. Instructions concerning the creation of a discovery schedule and trial date on damages will be provided under separate cover. Footnotes

Footnote 1:The paucity of cases concerning defects in the actual flooring of an indoor basketball court (as opposed to hazards resulting from water, dust, wax, cleaning solutions, etc. on the surface of the court) itself is indicative that holes are not commonly encountered in this context.

The Court notes Green v City of New York, 263 AD2d 385 [1st Dept 1999], in which no liability was found because the inmate voluntarily chose to play basketball on a court, the surface of which was in an obviously faulty condition. The decision does not indicate whether the basketball court was located indoors or outdoors. In a subsequent case, however, one concerning injuries sustained on parallel exercise bars in an outdoor prison recreation yard, that court, apparently relying upon other material in the Green record, noted that the inmate in Green was injured when he tripped over some bumps or ridges on the floor of an indoor basketball court (Marcano v City of New York, 296 AD2d 43, 54-55 [1st Dept 2002], revd 99 NY2d 548 [2002]). A Federal court, in turn, in a case where an inmate was injured playing basketball on a partially open-air recreation deck that was exposed to the elements, cited the unreported facts of Green related by Marcano, when it stated that the same inherent risk of playing basketball on an uneven or irregular surface applicable to outdoor courts (as determined by Sykes v County of Erie, 94 NY2d 912, supra), also extends to cover indoor courts (Scoma v United States of America, 2004 WL 40511 [EDNY 2004]).

The Court has been unable to find that the particular question has been addressed by either the Court of Appeals or the Second Department. The Court is mindful, however, that, in the absence of such guidance, it is constrained by the doctrine of stare decisis to follow precedents set by the Appellate Division of other departments until such time as either the Court of Appeals or the Second Department pronounces another rule (Mountain View Coach Lines, Inc. v Storms, 102 AD2d 663, 664 [2d Dept 1984]; Caleca v City of New York, 18 Misc 3d 1128[A] [Sup Ct, Kings County 2008]). Nevertheless, the Court determines that the above-referenced cases do not provide precedential authority that an uneven or irregular surface is, in fact, an inherent risk of playing basketball on an indoor court. As noted, the Green decision does not state that the court was indoors. The discussion in Marcano is dictum since the inherent risks of play on an indoor court is not essential to the resolution of that case involving an outdoor recreation yard (see People v Taylor, 9 NY3d 129, 164-165 [2007]) and Scoma merely summarizes Marcano's gloss on Green. In any event, Scoma is a Federal case and also involves a playing surface that was exposed to the elements. Since "dictum is not entitled to stare decisis effect," this Court concludes, with the greatest of respect to those courts, that it is not bound by the statements contained in Marcano and Scoma (People v Bethea, 67 NY2d 364, 368 [1986]; see People v Morgan, 2001 NY Slip Op 40090U [Sup Ct, Kings County 2001]; London Terrace Towers, Inc. v Davis, 6 Misc 3d 600, 612 [Civ Ct, New York County 2004]).

Footnote 2:Defendant's hearsay objection was overruled because it is settled that statements which are not offered for the truth of the matters asserted therein are not hearsay and may be used to demonstrate that a defendant had notice of a defective condition (Dawson v Raimon Realty Corp., 303 AD2d 708 [2d Dept 2003]; Gelpi v 37th Ave. Realty Corp., 281 AD2d 392 [2d Dept 2001]; Stern v Waldbaum, 234 AD2d 534 [2d Dept 1996]).