SAMMUT v. CITY OF NEW YORK (2007)

In an action to recover damages for personal injuries, the defendants appeal from an order of the Supreme Court, Kings County (Partnow, J.), dated October 26, 2005, which denied their motion, in effect, for summary judgment dismissing the complaint.

ORDERED that the order is reversed, on the law, with costs, and the defendants' motion, in effect, for summary judgment dismissing the complaint is granted.

The defendants established their entitlement to judgment as a matter of law.   The plaintiff was injured while playing tennis on an outdoor court when she tripped on a crack in the tennis court surface.  “The court surface is the playing field directly used in playing outdoor tennis, and the plaintiff is therefore deemed to have assumed the risk of injury” (Cevetillo v. Town of Mount Pleasant, 262 A.D.2d 517, 518, 692 N.Y.S.2d 426).   Further, the record reveals that the crack was open and obvious.   The crack was not concealed in a way “which created a ‘dangerous condition over and above the usual dangers inherent in the sport’ ” (id., quoting Owen v. R.J.S. Safety Equip., 79 N.Y.2d 967, 970, 582 N.Y.S.2d 998, 591 N.E.2d 1184).   In opposition to the defendants' motion for summary judgment, the plaintiff failed to raise a triable issue of fact.   Thus, the Supreme Court should have granted the defendants' motion (see id.;   see also Joseph v. New York Racing Assn., 28 A.D.3d 105, 112, 809 N.Y.S.2d 526).