SYKES v. COUNTY OF ERIE

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

Lester SYKES, Jr., and Salina Sykes, Plaintiffs-Respondents, v. COUNTY OF ERIE, Defendant-Appellant.

Decided: July 09, 1999

PRESENT:  DENMAN, P.J., PINE, WISNER, HURLBUTT and CALLAHAN, JJ. Charles L. Sawyer, Buffalo, for defendant-appellant. James I. Myers, Williamsville, for plaintiffs-respondents.

Plaintiffs commenced this action seeking to recover damages for a knee injury sustained by Lester Sykes, Jr. (plaintiff) while playing basketball on an outdoor court owned by defendant.   Plaintiff was injured when he stepped into a recessed drain near the free throw line.

Supreme Court erred in denying defendant's motion for summary judgment dismissing the complaint.   Plaintiff assumed those risks inherent in playing on the outdoor basketball court, including those risks associated with the construction of the court and its open and obvious condition (see, Sheridan v. City of New York, 261 A.D.2d 528, 690 N.Y.S.2d 620;  Retian v. City of New York, 259 A.D.2d 684, 686 N.Y.S.2d 857;  Paone v. County of Suffolk, 251 A.D.2d 563, 674 N.Y.S.2d 761;  Walner v. City of New York, 243 A.D.2d 629, 668 N.Y.S.2d 903;  Reynolds v. Jefferson Val. Racquet Club, 238 A.D.2d 493, 657 N.Y.S.2d 907;  McKey v. City of New York, 234 A.D.2d 114, 115, 650 N.Y.S.2d 706;  Steward v. Town of Clarkstown, 224 A.D.2d 405, 406, 638 N.Y.S.2d 125, lv. denied 88 N.Y.2d 815, 651 N.Y.S.2d 16, 673 N.E.2d 1243;  cf., Worrell v. New York City Hous. Auth., 255 A.D.2d 438, 680 N.Y.S.2d 597;  Cronson v. Town of N. Hempstead, 245 A.D.2d 331, 665 N.Y.S.2d 98).   Here, the parties' submissions establish that the recessed drain on the court was “clearly visible” (Paone v. County of Suffolk, supra, at 564, 674 N.Y.S.2d 761;  see, Brown v. City of New York, 251 A.D.2d 361, 674 N.Y.S.2d 82), and thus plaintiff assumed the risk of injury from stepping into it (see, Paone v. County of Suffolk, supra, at 564, 674 N.Y.S.2d 761;  Brown v City of New York, supra;  McKey v City of New York, supra, at 115, 650 N.Y.S.2d 706;  Steward v. Town of Clarkstown, supra, at 406, 638 N.Y.S.2d 125;  see also, Touti v. City of New York, 233 A.D.2d 496, 650 N.Y.S.2d 977).

Order reversed on the law without costs, motion granted and complaint dismissed.

We respectfully dissent.  “[F]or purposes of determining the extent of [defendant's] threshold duty of care, knowledge plays a role but inherency is the sine qua non [citations omitted]” (Morgan v. State of New York, 90 N.Y.2d 471, 484, 662 N.Y.S.2d 421, 685 N.E.2d 202).   Even assuming, arguendo, that defendant met its initial burden of establishing that plaintiff Lester Sykes, Jr., was aware of the risk of playing basketball near the drain, appreciated the nature of the risk, and voluntarily assumed the risk (see, Morgan v. State of New York, supra, at 484, 662 N.Y.S.2d 421, 685 N.E.2d 202), we conclude that plaintiffs raised a triable issue of fact whether “the conditions caused by the defendant['s] negligence are ‘unique and created a dangerous condition over and above the usual dangers that are inherent in the sport’ ” of basketball (Morgan v. State of New York, supra, at 485, 662 N.Y.S.2d 421, 685 N.E.2d 202, 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;  see generally, Alvarez v. Prospect Hosp., 68 N.Y.2d 320, 324, 508 N.Y.S.2d 923, 501 N.E.2d 572).   Plaintiffs' expert averred that he had observed hundreds of basketball courts and had never seen a drain similarly placed, and that “the installation and maintenance of such a drain on the basketball court represents a defective and unsafe condition”.   Plaintiffs' expert further averred that the design, installation and/or maintenance of the drain on the foul line is contrary to architectural and engineering design practices and standards.   Thus, we would affirm the order denying defendant's motion for summary judgment dismissing the complaint and allow the case to go to trial.

MEMORANDUM: