Gerardo Rodriguez, Plaintiff-Appellant, v. The City of New York, et al., Defendants-Respondents, John Does # 1-5, et al., Defendants. (2011)

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Order, Supreme Court, Bronx County (Lucy Billings, J.), entered December 22, 2009, which, in action for personal injuries sustained when plaintiff spectator was struck in the eye by a baseball as he stood at an open gate in a fence surrounding a baseball field during batting practice, inter alia, granted the motion of defendants City of New York and the City's Department of Parks and Recreation for summary judgment dismissing the complaint, unanimously affirmed, without costs.

Dismissal of the complaint was appropriate since plaintiff assumed the risk that resulted in his injury (see Roberts v Boys & Girls Republic, Inc., 51 AD3d 246, 247 [2008], affd 10 NY3d 889 [2008] ).   The record demonstrates that plaintiff was aware that batting practice was taking place as he was standing at the open gate in an effort to call to his young son who was on the field.   Contrary to plaintiff's contention, the City did not have a duty to ensure that the subject gate along the third baseline be equipped with a latch or a self-closing mechanism (see Akins v Glens Falls City School Dist., 53 N.Y.2d 325, 331 [1981] ).

THIS CONSTITUTES THE DECISION AND ORDER

OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.

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CLERK