BALGLEY v. CITY OF NEW YORK (2023)

DECISION & ORDER

In an action to recover damages for personal injuries, the plaintiff appeals from an order of the Supreme Court, Queens County (Kevin J. Kerrigan, J.), entered April 23, 2021.  The order granted the defendants’ motion for summary judgment dismissing the complaint.

ORDERED that the order is affirmed, with costs.

On May 9, 2013, the plaintiff allegedly was injured when he tripped and fell due to a hole on an outdoor basketball court located within Yellowstone Municipal Park in Queens.  In July 2014, the plaintiff commenced this action to recover damages for personal injuries.  After discovery, the defendants moved for summary judgment dismissing the complaint.  The Supreme Court granted the motion.  The plaintiff appeals.

“Under the doctrine of primary assumption of risk, ‘by engaging in a sport or recreational activity, a participant consents to those commonly appreciated risks which are inherent in and arise out of the nature of the sport generally and flow from such participation’ ” (Asprou v. Hellenic Orthodox Community of Astoria, 185 A.D.3d 641, 642, 127 N.Y.S.3d 584, quoting Morgan v. State of New York, 90 N.Y.2d 471, 484, 662 N.Y.S.2d 421, 685 N.E.2d 202;  see Custodi v. Town of Amherst, 20 N.Y.3d 83, 88, 957 N.Y.S.2d 268, 980 N.E.2d 933).  “Risks inherent in a sporting activity are those which are known, apparent, natural, or reasonably foreseeable consequences of the participation” (Mamati v. City of N.Y. Parks & Recreation, 123 A.D.3d 671, 672, 997 N.Y.S.2d 731).  “The primary assumption of risk doctrine also encompasses risks involving less than optimal conditions” (Bukowski v. Clarkson Univ., 19 N.Y.3d 353, 356, 948 N.Y.S.2d 568, 971 N.E.2d 849;  see Sykes v. County of Erie, 94 N.Y.2d 912, 913, 707 N.Y.S.2d 374, 728 N.E.2d 973).

Here, the defendants established, prima facie, that the plaintiff assumed the risk of injury from stepping into a hole by voluntarily choosing to play basketball on an outdoor basketball court surface with faulty conditions which were open and obvious (see Sykes v. County of Erie, 94 N.Y.2d at 913, 707 N.Y.S.2d 374, 728 N.E.2d 973;  Cruz v. City of New York, 197 A.D.3d 555, 556, 152 N.Y.S.3d 708;  Casey v. Garden City Park–New Hyde Park School Dist., 40 A.D.3d 901, 902, 837 N.Y.S.2d 186).  In opposition, the plaintiff failed to raise a triable issue of fact.

In light of our determination, we need not reach the parties’ remaining contentions.

Accordingly, the Supreme Court properly granted the defendants’ motion for summary judgment dismissing the complaint.

BRATHWAITE NELSON, J.P., IANNACCI, FORD and VOUTSINAS, JJ., concur.