Leitner v City of New York
Annotate this CaseDecided on June 28, 2018
Supreme Court, New York County
Kenneth A. Leitner, Plaintiff,
against
The City of New York; et ano, Defendants
153361/2013
David Steigbigel, Esq.
The Berkman Law Office
Attorneys for Plaintiff Kenneth A. Leitner
111 Livingston Street
Suite 1928
Brooklyn, NY 11201
718-855-3627
dsteigbigel@berkmanlaw.com
Stephen Mazzalonga, Esq.
Corporation Counsel, Zachary W. Carter, Esq.
Attorneys for Defendants
100 Church Street
Room 2-109(h)
New York, NY 10007
212-356-2727
Alexander M. Tisch, J.
The following papers numbered 20 to 39 read on this motion
NYSCEF Doc. Nos.Notice of Motion, Affirmations & Exhibits 20—30
Affirmation in Opposition 33—35
Reply Affirmation
39
Upon the foregoing papers, defendant City of New York (City) moves pursuant to CPLR Rule 3212 for summary judgment dismissing plaintiff's complaint. For the following reasons, the motion is denied.
On June 2, 2012, plaintiff was on an outdoor basketball court in St. Vartan's Park on East 35th Street in the County, City and State of New York. He testified that he was watching his kids play basketball and talking to other parents. A ball rebounded and it was coming towards him. He went to get it and took a step back, his ankle twisted, and he realized it twisted in a crack in the court.
In support of its motion, the City argues that plaintiff assumed the risk of his injury "because he was voluntarily engaged in a recreational activity, and the City discharged its duty to make the premises as safe as it appeared to be because the alleged condition was open and obvious" (Mazzalonga aff, ¶ 7).
A review of plaintiff's testimony indicates that plaintiff was not voluntarily engaged in a recreational activity but was merely a spectator. In any event, whether he was a spectator or a participant to the game, he would have assumed certain risks inherent to the game of playing basketball by voluntarily being on the basketball court (see, e.g., Roberts v Boys and Girls Republic, Inc., 51 AD3d 246 [1st Dept 2008]).
"Pursuant to the doctrine of primary assumption of risk, one is deemed to have assumed, as a voluntary participant, spectator, or even bystander, certain risks occasioned by athletic or recreational activity, and to the extent of such an assumption, any legally enforceable duty to reduce the risks of such activity is limited" (Roberts v Boys and Girls Republic, Inc., 51 AD3d 246, 247 [1st Dept 2008] [emphasis added], affd 10 NY3d 889 [2008]; see Akins v Glens Falls City School Dist., 53 NY2d 325, 327 [1981] ["the spectator at a sporting event, no less than the participant, 'accepts the dangers that inherent in it so far as they are obvious and necessary'"], quoting Murphy v Steeplechase Amusement Co., 250 NY 479, 482 [1929]). "An assumption under the doctrine is thus potentially broad and may encompass risks engendered by less than optimal conditions, provided that those conditions are open and obvious and that the consequently arising risks are readily appreciable" (Roberts, 51 AD3d at 248).
This principle may also extend to the risks involved in the general layout and construction of a playing field (see Bryant v Town of Brookhaven, 135 AD3d 801, 802 [2d Dept 2016] ["Among the risks inherent in participating in a sport are the risks involved in the construction of the field, and any open and obvious conditions of the place where the sport is played"]; Sanchez v City of New York, 25 AD3d 776, 776 [2d Dept 2006] ["The assumption of risk doctrine also applies to any readily observable condition of the place where the activity is carried on"]).
However, this Court finds that cracks in a basketball court are not inherent in the sport of basketball. Nor do cracks "arise out of the nature of the sport generally and flow from such participation" of playing basketball (Morgan v State of New York, 90 NY2d 471, 484 [1997]).
While the doctrine may apply in situations where plaintiff's injury was caused by an irregular surface, such application is proper to "irregular surfaces or features in playing spaces that existed as they were designed" (Philius v City of New York, 161 AD3d 787, 796 [2d Dept 2018], quoting Palladino v Lindenhurst Union Free School Dist., 84 AD3d 1194, 1199 [2d Dept [*2]2011]). Basketball courts are not designed with cracks in them.
The City relies on Sykes v County of Erie, where the Court of Appeals held that plaintiff assumed "the risks of playing upon an irregular surface" that "are inherent in outdoor basketball activities" (94 NY2d 912, 913 [2000]). There, the plaintiff "injured his knee when he stepped into a recessed drain near the free throw line while playing basketball on an outdoor court owned by defendant" (id.). As Justice Connelly noted in her concurring opinion in Philius, supra, "critical to understanding Sykes is the Court of Appeals' statement that, '[a]lthough the doctrine of assumption of risk does not exculpate a landowner from liability for ordinary negligence in maintaining a premises, there is no evidence that the drain was defective or improperly maintained'" (161 AD3d at 795, quoting Sykes, 94 NY2d at 913).
Here, unlike the feature that caused plaintiff's injury in Sykes (the recessed drain), it cannot be said that the basketball court was designed with cracks in it. Indeed, tripping hazards of this nature indicate that the surface was not maintained; this sort of state of disrepair should not exculpate a landowner from liability (see Philius, 161 AD3d at 796—97 [Connelly, J., concurring] ["it does not comport with public policy to preclude only sporting participants from suing landowners who have negligently allowed their properties to deteriorate—indeed, if the plaintiff had been a pedestrian who tripped while simply passing through the basketball court, he would be allowed to hold the defendant responsible for its negligence"]).
Additionally, as the plaintiff points out in opposition, there is no evidence that he had seen this particular crack before or was aware of it at any time prior to his fall. Thus, in considering, e.g., this particular plaintiff's experience in assuming the risk of the injury (see Morgan, 90 NY2d at 486), it cannot be said that he knew about such risk such that he voluntarily consented to the hazard (cf. Philius, 161 AD3d at 800 [Justice Connelly concurring with the majority to grant defendant summary judgment "because NYCHA established that the plaintiff was aware of the cracks on the court and voluntarily chose to play basketball at this location"]; Williams v New York City Hous. Auth., 107 AD3d 530, 531 [1st Dept 2013] ["Plaintiff was an experienced player and was aware that the subject court, where he had played on numerous occasions, had cracks."]).
Therefore, the assumption of the risk doctrine should not apply here, whether plaintiff was a spectator or a participant. As such, the Court finds that the City has not shown that it completely discharged any duty owed to plaintiff to maintain the premises in a reasonably safe condition.
The City also claims that the defect was open and obvious. However, in order to completely absolve the City of any liability, it must also be found to be "not inherently dangerous" as a matter of law (see Cupo v Karfunkel, 1 AD3d 48, 52 [2d Dept 2003]; Sirianni v Town of Oyster Bay, 156 AD3d 739 [2d Dept 2017]). Additionally, "the fact that a condition is visible does not necessarily mean it is open and obvious" (Cook v Consolidated Edison Co., 51 AD3d 447, 448 [1st Dept 2008]). Here, the Court cannot conclude that a crack in the court, about ten feet long, is not inherently dangerous.
Accordingly, the City failed to meet their burden entitling them to summary judgment on the grounds that plaintiff assumed the risk of his injury and the defect was open and obvious (see Alvarez v Prospect Hosp., 68 NY2d 320, 324 [1986]). Failure to meet this burden requires denial of the motion, regardless of the opposition papers (see id.).
This shall constitute the decision and order of the Court.
E N T E R,
HON. ALEXANDER M. TISCH
A.J.S.C.
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