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

Kenneth GREEN, Plaintiff-Appellant, v. The CITY OF NEW YORK, et al., Defendants-Respondents.

Decided: July 15, 1999

ELLERIN, P.J., TOM, WALLACH and FRIEDMAN, JJ. Marc Miner, for Plaintiff-Appellant. Linda H. Young, for Defendants-Respondents.

Order, Supreme Court, Bronx County (Douglas McKeon, J.), entered July 21, 1998, which granted defendants' cross-motion for summary judgment dismissing the complaint and denied plaintiff's motion to strike defendants' answer as moot, unanimously affirmed, without costs.

On July 3, 1994, plaintiff, an inmate at a city correctional facility, tripped and fell during the course of a basketball game, injuring his knee.   The evidence shows that plaintiff fell on an open and obvious defect on the basketball court, of which he was aware.

 It is well established that “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” (Morgan v. State of New York, 90 N.Y.2d 471, 484, 662 N.Y.S.2d 421, 685 N.E.2d 202).   This encompasses those risks that are associated with the construction of the playing field and any open and obvious defects on it (Maddox v. City of New York, 66 N.Y.2d 270, 277, 496 N.Y.S.2d 726, 487 N.E.2d 553).

 In this case, since plaintiff voluntarily chose to play basketball on a court surface whose faulty condition was perfectly obvious, his injury, as a matter of law, cannot be held to be due to a violation of defendants' duty to exercise ordinary, reasonable care (McKey v. City of New York, 234 A.D.2d 114, 650 N.Y.S.2d 706;  see also, Retian v. City of New York, 259 A.D.2d 684, 686 N.Y.S.2d 857;  Sheridan v. City of New York, 261 A.D.2d 528, 690 N.Y.S.2d 620;  Paone v. County of Suffolk, 251 A.D.2d 563, 674 N.Y.S.2d 761;  Brown v. City of New York, 251 A.D.2d 361, 674 N.Y.S.2d 82;  compare, Warren v. Town of Hempstead, 246 A.D.2d 536, 667 N.Y.S.2d 389).


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