COHEN v. MASSAPEQUA UNION FREE SCHOOL DISTRICT (2001)

Supreme Court, Appellate Division, Second Department, New York.

Kenneth COHEN, Appellant, v. MASSAPEQUA UNION FREE SCHOOL DISTRICT, Respondent.

Decided: July 23, 2001

FRED T. SANTUCCI, J.P., GABRIEL M. KRAUSMAN, LEO F. McGINITY and SANDRA J. FEUERSTEIN, JJ.

Richard T. Sinrod, Massapequa, N.Y. (Judith Ellen Stone of counsel), for appellant. O'Connor, O'Connor, Hintz & Deveney, Garden City, N.Y. (Eugene O. Morenus and Kevin J. Murtagh of counsel), for respondent.

In an action to recover damages for personal injuries, the plaintiff appeals from a judgment of the Supreme Court, Nassau County (Winick, J.), entered April 19, 2000, which, upon granting the defendant's motion pursuant to CPLR 4401 for judgment as a matter of law made at the close of the plaintiff's case, is in favor of the defendant and against him dismissing the complaint.

ORDERED that the judgment is affirmed, with costs.

The plaintiff was injured when he fell on an unidentified hard object while running and attempting to kick a ball on the defendant's soccer field. Contrary to the plaintiff's contention, the Supreme Court properly granted the defendant's motion and dismissed the complaint, as the plaintiff failed to prove that the defendant had notice of the allegedly defective condition. In any event, by engaging in a sport or recreational activity, the plaintiff consented to all of the risks which were inherent in and flowed from his activities in running and in kicking a ball on the soccer field (see, Morgan v. State of New York, 90 N.Y.2d 471, 484-486, 662 N.Y.S.2d 421, 685 N.E.2d 202).

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