SANCHEZ v. CITY OF NEW YORK

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

Yarimith SANCHEZ, et al., respondents, v. CITY OF NEW YORK, et al., appellants.

Decided: January 31, 2006

HOWARD MILLER, J.P., THOMAS A. ADAMS, DANIEL F. LUCIANO, and REINALDO E. RIVERA, JJ. Michael A. Cardozo, Corporation Counsel, New York, N.Y. (Leonard Koerner and Ronald E. Sternberg of counsel), for appellants Board of Education of City of New York, Kenneth Hernandez, and Alex Ortiz. Finkelstein & Partners, Newburgh, N.Y. (James W. Shuttleworth III of counsel), for respondents.

In an action to recover damages for personal injuries, etc., the defendants Board of Education of the City of New York, Kenneth Hernandez, and Alex Ortiz appeal, as limited by their brief, from so much of an order of the Supreme Court, Queens County (Schulman, J.), dated July 19, 2004, as denied that branch of the defendants' motion which was for summary judgment dismissing the complaint insofar as asserted against them, and the defendant City of New York appeals from the same order.

ORDERED that the appeal by the defendant City of New York is dismissed as abandoned (see 22 NYCRR 670.8);  and it is further,

ORDERED that the order is reversed insofar as appealed from, on the law, that branch of the motion which was for summary judgment dismissing the complaint insofar as asserted against the defendants Board of Education of City of the New York, Kenneth Hernandez, and Alex Ortiz is granted, and the complaint is dismissed insofar as asserted against those defendants;  and it is further,

ORDERED that one bill of costs is awarded to the defendants the Board of Education of the City of New York, Kenneth Hernandez, and Alex Ortiz.

 The doctrine of assumption of the risk provides 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;  see Taylor v. Massapequa Int'l Little League, 261 A.D.2d 396, 397, 689 N.Y.S.2d 523). The assumption of risk doctrine also applies to any readily observable condition of the place where the activity is carried on (see Maddox v. City of New York, 66 N.Y.2d 270, 277, 496 N.Y.S.2d 726, 487 N.E.2d 553;  Bruno v. Town of Hempstead, 248 A.D.2d 576, 577, 670 N.Y.S.2d 864;  Pascucci v. Town of Oyster Bay, 186 A.D.2d 725, 726, 588 N.Y.S.2d 663;  Diderou v. Pinecrest Dunes, 34 A.D.2d 672, 673, 310 N.Y.S.2d 572).

 Here, the defendants Board of Education of the City of New York, Kenneth Hernandez, and Alex Ortiz (hereinafter the defendants) sustained their burden of demonstrating prima facie that the injured plaintiff assumed the risks inherent in playing baseball in the gymnasium where she sustained her injuries, including those risks associated with any readily observable defect or obstacle in the place where the sport was played (see Ciocchi v. Mercy Coll., 289 A.D.2d 362, 363, 735 N.Y.S.2d 144;  Torre v. City of Glen Cove, 259 A.D.2d 540, 540-541, 686 N.Y.S.2d 457;  Bruno v. Town of Hempstead, supra;   Walner v. City of New York, 243 A.D.2d 629, 668 N.Y.S.2d 903;  Gahan v. Mineola Union Free School Dist., 241 A.D.2d 439, 440-441, 660 N.Y.S.2d 144;   Conway v. Deer Park Union Free School Dist. No. 7, 234 A.D.2d 332, 333, 651 N.Y.S.2d 96;  Bartucelli v. New York City Bd. of Educ., 233 A.D.2d 352, 650 N.Y.S.2d 588;  Tiedemann v. Notre Dame Academy, 227 A.D.2d 545, 546, 643 N.Y.S.2d 381).   In opposition, the plaintiffs failed to raise a triable issue of fact as to whether the injured plaintiff was subjected to a concealed or unreasonably increased risk.   Accordingly, the Supreme Court should have granted that branch of the motion which was for summary judgment dismissing the complaint insofar as asserted against the defendants.

The plaintiffs' remaining contentions are without merit.

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