LaSALVIA v. CITY OF NEW YORK

Reset A A Font size: Print

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

Ralph LaSALVIA, Plaintiff-Appellant, v. The CITY OF NEW YORK, et al., Defendants-Respondents.

Decided: May 20, 2003

TOM, J.P., MAZZARELLI, ROSENBERGER, ELLERIN, and WILLIAMS, JJ. Mary Elizabeth Burns, for Plaintiff-Appellant. Marta Ross, for Defendants-Respondents.

Order, Supreme Court, Bronx County (Stanley Green, J.), entered November 2, 2001, which granted defendants' motion for summary judgment dismissing the complaint, unanimously affirmed, without costs.

The complaint seeks damages for injuries allegedly sustained by plaintiff when he tripped on a schoolyard pavement defect while playing an unsupervised game of touch football.   Under the circumstances herein, on a day and time when school was not in session, the 22-year-old plaintiff assumed the risks inherent in the schoolyard touch football game, including any obvious risk posed by the irregular playing surface (see Sykes v. County of Erie, 94 N.Y.2d 912, 913, 707 N.Y.S.2d 374, 728 N.E.2d 973), and since the defect was not concealed but was plainly visible (cf.  Ellis v. City of New York, 281 A.D.2d 177, 721 N.Y.S.2d 525), the motion court properly found the defect sufficiently obvious to warrant summary judgment dismissing the complaint (see Furgang v. Club Med, 299 A.D.2d 162, 753 N.Y.S.2d 359, lv. denied 99 N.Y.2d 504, 755 N.Y.S.2d 711, 785 N.E.2d 733;  McKey v. City of New York, 234 A.D.2d 114, 650 N.Y.S.2d 706).