SWAN v. CITY OF NEW YORK (2000)

In an action to recover damages for personal injuries, the defendants appeal from (1) a judgment of the Supreme Court, Kings County (Kramer, J.), entered April 13, 1999, which, upon a jury verdict, is in favor of the plaintiff and against them in the principal sum of $299,000, and (2) a resettled judgment of the same court, entered June 29, 1999, granting the same relief.

ORDERED that the appeal from the judgment is dismissed as the judgment was superseded by the resettled judgment;  and it is further,

ORDERED that the resettled judgment is affirmed;  and it is further,

ORDERED that the respondent is awarded one bill of costs.

The plaintiff sustained injuries after stepping in a hole while playing basketball on a court located in a New York City park.   Because the hole was concealed by growing vegetation, the plaintiff could not have assumed the risk as a matter of law (see, Morgan v. State of New York, 90 N.Y.2d 471, 662 N.Y.S.2d 421, 685 N.E.2d 202;  Benitez v. New York City Bd. of Educ., 73 N.Y.2d 650, 543 N.Y.S.2d 29, 541 N.E.2d 29;  Warren v. Town of Hempstead, 246 A.D.2d 536, 667 N.Y.S.2d 389).   Furthermore, the jury verdict was not against the weight of the evidence (see, Nicastro v. Park, 113 A.D.2d 129, 495 N.Y.S.2d 184).

MEMORANDUM BY THE COURT.