MOORE v. CITY OF NEW YORK (2006)

In an action to recover damages for personal injuries, the defendant appeals, as limited by its brief, from so much of an order of the Supreme Court, Kings County (Solomon, J.), dated November 24, 2004, as denied its cross motion for summary judgment dismissing the complaint.

ORDERED that the order is affirmed insofar as appealed from, with costs.

The plaintiff allegedly was injured while riding his bicycle on South Lake Drive in Prospect Park when the front wheel of the bicycle fell through a gap between a sewer grating and the roadway.   Photographs of the scene depict the gap as being approximately one and one-half inches wide, running parallel to the direction of traffic, along the full length of the grating.   At the General Municipal Law § 50-h hearing, the plaintiff testified that he did not notice anything unusual about the sewer grating prior to the accident.   In his subsequent affidavit, he further clarified that the space between the sewer grating and the roadway was not discernible from his vantage point.

 “Contrary to the [defendant's] contention, the injured plaintiff cannot be said as a matter of law to have assumed the risk of being injured as a result of a defective condition on a paved pathway merely because [he] participated in the activity of bicycling” (Vestal v. County of Suffolk, 7 A.D.3d 613, 614-615, 776 N.Y.S.2d 491;  see also Berfas v. Town of Oyster Bay, 286 A.D.2d 466, 729 N.Y.S.2d 530).   In any event, even if the doctrine of primary assumption of the risk were applicable, the defendant failed to establish, as a matter of law, that the gap between the sewer grating and the roadway in this case was open and obvious, so as to come within the class of risk assumed by the plaintiff (see Warren v. Town of Hempstead, 246 A.D.2d 536, 667 N.Y.S.2d 389;  Weller v. Colleges of the Senecas, 217 A.D.2d 280, 635 N.Y.S.2d 990).

Accordingly, the defendant's motion was properly denied.