Garay v Saint Joseph's Roman Catholic Church
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Garay v Saint Joseph's R.C. Church 2018 NY Slip Op 34434(U) May 22, 2018 Supreme Court, Nassau County Docket Number: Index No. 603836/15 Judge: Anthony L. Parga Cases posted with a "30000" identifier, i.e., 2013 NY Slip Op 30001(U), are republished from various New York State and local government sources, including the New York State Unified Court System's eCourts Service. This opinion is uncorrected and not selected for official publication. INDEX NO. 603836/2015 FILED: NASSAU COUNTY CLERK 05/24/2018 11:52 AM NYSCEF DOC. NO. 26 RECEIVED NYSCEF: 05/24/2018 SHORT FORM ORDER SHORT FORM ORDER SUPREME YORK STATE-NASSAU SUPREME COURT-NEW COURT-NEW YORK STATE-NASSAU COUNTY COUNTY PRESENT: PRESENT: HON. ANTHONY HON. ANTHONY L. PARGA PARGA JUSTICE JUSTICE ---------------------------------------------------------------X ---------------------------------------------------------------)( PART4 PART 4 HENRY GARAY, GARAY, HENRY Plaintiff, Plaintiff, INDE)( NO. 603836/15 INDEX NO. 603836/15 MOTION 3/29/18 MOTION DATE: DA TE: 3/29/18 SEQUENCE NOS.: NOS.: 001 SEQUENCE -against-againstSAINT JOSEPH'S CATHOLIC SAINT JOSEPH'S ROMAN ROMAN CATHOLIC CHURCH, CHURCH, Defendant. Defendant. ---------------------------------------------------------------X ---------------------------------------------------------------)( Notice of 0f M otio n, Affm., ,.................................•......................... , _1 __ Notice Motion, Affm., & Exhs Exhs ........................................................................................... _1_ Affirmation Affm., & Exhs Exhs ........................................................................... _2_ Affirmation in Opposition, Opposition, Affm., .................................................•......................... _2_ Reply Affirmation ~ Reply Affirmation .................. ···············'.······················ .. :; ............................ _3_ _3_ Upon the foregoing foregoing papers, papers, the motion motion by defendant Roman Catholic Upon defendant Saint Saint Joseph's Joseph's Roman Catholic Church (hereinafter as "St. "S1. Joseph's") Joseph's") which seeks an order CPLR §3212 ~3212 for Church (hereinafter which seeks order pursuant pursuant to CPLR summary judgment complaint is determined determined as follows. follows. judgment dismissing dismissing plaintiff's plaintiffs complaint summary The within action seeks damages injuries sustained sustained by plaintiff The within action seeks damages for personal personal injuries plaintiff during during a basketball game at defendant's gymnasium on March 12,2015, Broadway, basketball game defendant's gymnasium March 12, 2015, located located at 1346 Broadway, Hewlett, York 11557. It is alleged, alleged, inter inter alia, in plaintiff's of Particulars New York plaintiffs Verified Verified Bill of Particulars that that Hewlett, New plaintiff's injuries were caused by a defective defective dangerous dangerous condition plaintiffs injuries were caused condition at the premises premises and, more more specifically, that close proximity specifically, that the the platform/stage platform/stage was under under and in close proximity to the backboard, backboard, basket basket and out-of-bounds out-of-bounds line. Plaintiff testified that he had been team since since 2013. Plaintiff testified that been playing playing on the Mercy Mercy First First Basketball Basketball team Plaintifftestified on the day of of the incident S1. Joseph's league playoff incident he was at St. Joseph's for a league playoff game. Plaintiff testified that that on seeing the stage stage and and the wall in front front of of the stage stage prior He recalled recalled seeing prior to the game. game. Plaintiff Plaintiff testified that at the start start of of game game he stole stole the ball and went fast break testified went on a fast break to the basket, basket, laid it up with his right right hand stage was was right right in front of him and his right coming down down the stage front of with hand and as he was coming [* 1] 1 of 4 INDEX NO. 603836/2015 FILED: NASSAU COUNTY CLERK 05/24/2018 11:52 AM NYSCEF DOC. NO. 26 RECEIVED NYSCEF: 05/24/2018 down went crashing into the stage. side from his hip down went crashing Defendant contending that claims are barred Defendant moves moves for summary summary judgment judgment contending that the plaintiffs plaintiffs claims barred by the doctrine doctrine of of primary assumption of of risk open and obvious. obvious. primary assumption risk and that the condition condition was open In support submits, inter alia, the deposition transcript of of support of of its application application defendant defendant submits, inter alia, deposition transcript plaintiff; transcript and affidavit affidavit of Robert P. Ryan, Ryan, Facilities Facilities Manager Manager at St. plaintiff; the deposition deposition transcript of Robert Joseph's Parish; deposition transcript of non-party Joseph's Parish; the deposition transcript of non-party witness witness Jeffery Jeffery McBride; McBride; the deposition deposition transcript of non-party color photographs. transcript of non-party witness witness Anne Anne Gildea Gildea and and various various color photographs. Robert (II) years Robert Ryan, Ryan, Facilities Facilities Manager Manager for eleven eleven (11) years at St. Joseph's Joseph's Parish Parish testified testified that that the gym was mostly mostly used Organization (CYO) (CYO) and CYO has used it for used for Catholic Catholic Youth Youth Organization and that that CYO past eleven years for basketball basketball games. testified he had little the past eleven (11) (II) years games. He testified little or no involvement involvement with CYO and the basketball could not of the stage stage or its basketball league. league. Mr. Ryan Ryan could not provide provide the dimensions dimensions of distance from the baseline of the basketball basketball court. He testified testified that that there there are four (4) pads distance baseline of permanently affixed to the front of attests in his permanently affixed of the stage. Mr. Ryan Ryan attests his affidavit affidavit that that there there were no complaints made to the Church concerning the condition that he is not not complaints made Church concerning condition or layout layout of of the gym, and that aware of of any accident accident having involving a player having occurred occurred involving player being being injured injured due due to the presence presence of of the aware stage or its proximity proximity to the baseline. baseline. Jeffery of the CYO team Jeffery McBride, McBride, the coach coach of team in which which plaintiff plaintiff played, played, did not not notice notice nor report dangerous condition date of of the incident incident prior report any dangerous condition to the referee referee on the date prior to the game. game. He aware of of anyone anyone else else having having an accident accident at this this gym prior prior to plaintiff. plaintiff. He did not not know know was not aware measurements stage being measurements between between baseline baseline and stage but but did recall recall the stage being padded. padded. He testified testified that the game continued continued after plaintiffs accident. accident. that after plaintiffs Defendant contends that of participating game, that pa1iicipating in the game, that the. the· Defendant contends that plaintiff plaintiff assumed assumed the risk risk of risk of of colliding colliding with stage was inherent in and arising of the sport sport and that. with the stage was inherent arising out of of the the nature nature of that there owed to plaintiff stage was an open there was no duty owed plaintiff as the stage open and obvious obvious condition. condition. opposition, the plaintiff submits the affidavit safety expert, In opposition, plaintiff submits affidavit of of its safety expe1i, Leo DeBobes. DeBobes. Mr. DeBobes reviewed various documents pertaining litigation, conducted conducted a physical DeBobes reviewed various documents pertaining to this litigation, physical inspection of of the premises premises and and issues issues a letter letter report report containing containing his findings findings and and opinions. opinions. inspection opines that distance between between the basketball basketball court court and line boundary boundary and Mr. DeBobes DeBobes opines that the distance 2 .II [* 2] 2 of 4 INDEX NO. 603836/2015 FILED: NASSAU COUNTY CLERK 05/24/2018 11:52 AM NYSCEF DOC. NO. 26 RECEIVED NYSCEF: 05/24/2018 stage wall was 27 15/16 inches inches which which is significantly than the three the padded padded section section of of the stage significantly less than established by the National School Association (3) foot minimum minimum established National Federation Federation of of High High School Association Basketball Basketball Rules Book or the six ((6) 6) foot minimum minimum established established by that that American American Alliance Alliance for Healthy Healthy Rules Book Physical states that Physical Education, Education, Recreation Recreation and and Dance Dance (AHPERD). (AHPERD). Mr. DeBobes DeBobes states that an inadequate inadequate safety or buffer foreseeable risk of of injury. Mr. DeBobes buffer zone zone presents presents a foreseeable DeBobes further further opines opines that that the safety defendant was was negligent negligent in allowing allowing and/or defendant and/or permitting permitting the basketball basketball court court to exist exist without without properly maintained wall padding. padding. properly installed installed and maintained "Summary judgment...is designed to expedite cases by eliminating eliminating claims claims which "Swnmary judgment...is designed expedite civil cases which can Andre v Pomery, Pomery, 35 NY2d NY2d 361, 320 NE.2d 853, 362 properly resolved as a matter matter oflaw properly be resolved oflaw (see Andre 320 NE.2d NYS2d drastic remedy should only be employed employed when N YS.2d 131). It is a drastic remedy which which should when there there is no doubt doubt as to the absence absence of of triable issues ... ..."" (Pizzo-Juliano (Pizzo-Juliano v. 129A.D.3d 696,. JO 10 triable issues v. Southside Southside Hospital, Hospital, 129 A.D.3d 695, 696 N YS3d 572 [2"dDept. NY.S.3d [2 nd Dept. 2015J). 2015}). Ifthere doubt as to the existence existence of of fact, or if issue of of If there is any doubt of a triable triable issue issue of if a material material issue arguable, summary summary judgment should be denied. (Dykeman (Dykeman v. 767, 861 fact is arguable, judgment should v. Heht, 52 A.D.3d A.D.3d 767, N YS.2d YS2d 732 [2nd [2nd Dept. 2008) Celardo v. YS2d 85 {2d [2d Dept. N. 2008] Celardo v. Bell, 222 A.D.2d A.D.2d 547, 635 N Y.S.2d Stony Brook v. Village of of Patchogue 146 A.D.2d 572, 53~ 536 Brookv. Patchogue Fire Fire Dept., Dept, 146A.D.2d 1995}; Museums A1useums at Stony NYS2d [2d Dept. 1989 1989J). N. Y. S. 2d 177 {2d }). , ' Contrary to movant's of fact surrounding Contrary movant' s contentions, contentions, there there are questions questions of surrounding the design/layout of of the basketball court and its safety safety "':'hich ~hich preclude summary design/layout basketball court preclude the granting granting of of summary judgment. judgment. Accordingly, summary judgment denied . Accordingly, defendants defendants motion motion for summary judgment is denied. This constitutes constitutes the decision decision and Order of this ·. This Order of this Court. Court. Any Any requestfor request for relief relief not not expressly granted denied. expressly granted herein herein is denied. May 22, 2018 Dated: May 2018 ENTERED ENTERED 3 242018 MAY 2 4 .2018 NASSAU COUNTY COUNTY NASSAU COUNTY CLERK'S CLERK'S OFFICE OFFICE COUNTY [* 3] 3 of 4 FILED: NASSAU COUNTY CLERK 05/24/2018 11:52 AM NYSCEF DOC. NO. 26 Cc: RECEIVED NYSCEF: 05/24/2018 Mulholland Mulholland Minion Minion Davey Davey McNiff McNiff & Beyrer Beyrer 374 Hillside Hillside Avenue Avenue Williston NY 11596 Williston Park, Park, NY Ronemus & Vilensky Ronemus Vilensky nd Floor Avenue, 2nd 112 Madis.on Avenue, Floor New 10016 New York, York, NY NY 10016 4 [* 4] INDEX NO. 603836/2015 4 of 4
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