MORLOCK v. TOWN OF NORTH HEMPSTEAD

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

Michael MORLOCK, etc., et al., respondents, v. TOWN OF NORTH HEMPSTEAD, appellant.

Decided: November 29, 2004

NANCY E. SMITH, J.P., STEPHEN G. CRANE, WILLIAM F. MASTRO, and PETER B. SKELOS, JJ. Richard S. Finkel, Town Attorney, Manhasset, N.Y. (William J. Gillman of counsel), for appellant. Andrea & Towsky, Garden City, N.Y. (Robert L. Towsky and Leslie Lopez of counsel), for respondents.

In an action to recover damages for personal injuries, etc., the defendant appeals from an order of the Supreme Court, Nassau County (McCarty, J.), dated May 3, 2004, which denied its motion for summary judgment dismissing the complaint.

ORDERED that the order is reversed, on the law, with costs, the motion is granted, and the complaint is dismissed.

 “[B]y 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 risks associated with the construction of the playing surface (see Maddox v. City of New York, 66 N.Y.2d 270, 277, 496 N.Y.S.2d 726, 487 N.E.2d 553;  Peters v. City of New York, 269 A.D.2d 581, 703 N.Y.S.2d 923).

 The infant plaintiff assumed the risk of encountering cracks and holes in the surface of a cement rink while playing roller hockey, including the inherent risk of having his hockey stick get caught in a crack (see Gamble v. Town of Hempstead, 281 A.D.2d 391, 721 N.Y.S.2d 385;  Peters v. City of New York, supra;  Cevetillo v. Town of Mount Pleasant, 262 A.D.2d 517, 692 N.Y.S.2d 426;  Sheridan v. City of New York, 261 A.D.2d 528, 529, 690 N.Y.S.2d 620;  Alvarez v. Incorporated Vil. of Hempstead, 223 A.D.2d 663, 637 N.Y.S.2d 463).   Moreover, the infant plaintiff testified that he was aware of the defects, having played on that rink many times before, and having tripped on one of the cracks on a previous occasion.   Under these circumstances, the infant plaintiff's decision to continue playing on the allegedly defective rink constituted an assumption of the risk, mandating the grant of summary judgment to the Town of North Hempstead (see Stanger v. M & T Pretzel, 5 A.D.3d 471, 772 N.Y.S.2d 571;  Meli v. Star Power Natl. Talent Co., 283 A.D.2d 617, 618, 725 N.Y.S.2d 92;  Gillett v. County of Westchester, 274 A.D.2d 547, 548, 711 N.Y.S.2d 496;  Hernandez v. City of New York, 267 A.D.2d 280, 699 N.Y.S.2d 901;  Lo Piccolo v. Town of Oyster Bay Dept. of Parks, 260 A.D.2d 606, 688 N.Y.S.2d 670;  Matter of Moore v. State of New York, 245 A.D.2d 456, 457, 666 N.Y.S.2d 655;  Capello v. Village of Suffern, 232 A.D.2d 599, 648 N.Y.S.2d 699).

 There is no merit to the argument that the infant plaintiff's age raised an issue of fact as to whether he was able to appreciate the risks of playing roller hockey on a defective and dangerous skating surface.   The infant plaintiff's testimony at a hearing pursuant to General Municipal Law § 50-h indicated that he was an experienced rollerblader and street hockey player who was very familiar with the rink conditions at issue.   Under these circumstances, it could not be said that the infant plaintiff failed to appreciate the risk presented by the cracked surface of the rink (see Goldberg v. Town of Hempstead, 289 A.D.2d 198, 733 N.Y.S.2d 691;  Lamphier v. Rome City School Dist., 284 A.D.2d 989, 990, 726 N.Y.S.2d 884;  Peters v. City of New York, supra;  Hernandez v. City of New York, supra;  Matter of Moore v. State of New York, supra ).

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