MILLINER McMULLIN v. [And a Third-Party Action]. (2008)

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 N.Y.2d 912, 707 N.Y.S.2d 374, 728 N.E.2d 973 [2000];  LaSalvia v. City of New York, 305 A.D.2d 267, 759 N.Y.S.2d 79 [2003];  McKey v. City of New York, 234 A.D.2d 114, 650 N.Y.S.2d 706 [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 N.Y.2d 542, 544, 754 N.Y.S.2d 195, 784 N.E.2d 68 [2002];  Parris v. Port of N.Y. Auth., 47 A.D.3d 460, 461, 850 N.Y.S.2d 53 [2008] ).