SMITH v. VILLAGE OF HEMPSTEAD (1999)

In an action to recover damages for personal injuries, the plaintiff appeals from an order of the Supreme Court, Nassau County (DeMaro, J.), dated May 18, 1998, which granted the motion of the defendant for summary judgment dismissing the complaint.

ORDERED that the order is affirmed, with costs.

In Walner v. City of New York, 243 A.D.2d 629, 668 N.Y.S.2d 903, this court stated, “The Supreme Court properly concluded that the plaintiff assumed the risks inherent in playing on the outdoor basketball court where he sustained his injuries, including those risks associated with the construction of the court and any open and obvious conditions on it (see, Maddox v. City of New York, 66 N.Y.2d 270, 277, 496 N.Y.S.2d 726, 487 N.E.2d 553;  Touti v. City of New York, 233 A.D.2d 496, 650 N.Y.S.2d 977;  DiPietro v. Adelphi Univ., 233 A.D.2d 416, 650 N.Y.S.2d 603;  see also, Marescot v. St. Augustine's R.C. School, 226 A.D.2d 507, 641 N.Y.S.2d 79)”.   Our review of the record in this case, including the relevant photographs, leads to the conclusion that the crack which allegedly caused the plaintiff to fall was an open and obvious condition within the meaning of this rule.   We note that the plaintiff's expert himself described the condition as “an open hazard” (cf., Warren v. Town of Hempstead, 246 A.D.2d 536, 667 N.Y.S.2d 389).   The Supreme Court was therefore correct in granting summary judgment to the defendant (see also, Retian v. City of New York, 259 A.D.2d 684, 686 N.Y.S.2d 857;  Brown v. City of New York, 251 A.D.2d 361, 674 N.Y.S.2d 82).  “Since the plaintiff voluntarily chose to play basketball on a court surface with a faulty condition that was open and obvious, he assumed the risk of injury from stepping into a hole or depression” (Paone v. County of Suffolk, 251 A.D.2d 563, 564, 674 N.Y.S.2d 761, citing Maddox v. City of New York, supra;  see also, McKey v. City of New York, 234 A.D.2d 114, 650 N.Y.S.2d 706;  Russini v. Incorporated Vil. of Mineola, 184 A.D.2d 561, 584 N.Y.S.2d 622).

MEMORANDUM BY THE COURT.