Milliner v New York City Hous. Auth.

Milliner v New York City Hous. Auth. 2008 NY Slip Op 10039 [57 AD3d 383] December 23, 2008 Appellate Division, First Department Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. As corrected through Wednesday, February 11, 2009

Brandon Milliner, an Infant, by His Mother and Natural Guardian, Theresa McMullin, et al., Appellants,
v
New York City Housing Authority et al., Respondents. (And a Third-Party Action.)

—[*1] Kenneth L. Falk, New York, for appellants.

Cullen and Dykman LLP, Brooklyn (Joseph Miller of counsel), for New York City Housing Authority, respondent.

Catalano Gallardo & Petropoulos, LLP, Jericho (Matthew K. Flanagan of counsel), for Gazebo Contracting, Inc., respondent.

Order, Supreme Court, Bronx County (Mark Friedlander, J.), entered September 5, 2007, which granted defendants' motions for summary judgment dismissing the complaint, unanimously affirmed, without costs.

Dismissal of the complaint was appropriate since plaintiff assumed the risks inherent in playing basketball outdoors (see Sykes v County of Erie, 94 NY2d 912 [2000]; LaSalvia v City of New York, 305 AD2d 267 [2003]; McKey v City of New York, 234 AD2d 114 [1996]). The evidence establishes that plaintiff, an experienced basketball player who was familiar with the subject court's playing surface and its depressions, slipped in a puddle of water and fell. Indeed, plaintiff acknowledged that he had been playing on the court for about an hour and a half prior to his fall and was aware of the puddle.

The court properly found the expert's affidavit submitted by plaintiff to be of no probative value because it was vague and unsubstantiated (see Diaz v New York Downtown Hosp., 99 NY2d 542, 544 [2002]; Parris v Port of N.Y. Auth., 47 AD3d 460, 461 [2008]). Concur—Tom, J.P., Saxe, Catterson, Moskowitz and DeGrasse, JJ.