Carrero-Santiago v. Asphalt Green, Inc.
Opinion
Carrero-Santiago v Asphalt Green, Inc.
2026 NY Slip Op 05144
August 27, 2026
Appellate Division, First Department
Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.
This decision is uncorrected and subject to revision before publication in the Official Reports.
Maria Carrero-Santiago, Plaintiff-Respondent,
v
Asphalt Green, Inc. et al, Defendants-Appellants.
Decided and Entered: August 27, 2026
Index No. 33268/19|Appeal No. 6556|Case No. 2025-06423|
Before: Moulton, J.P., Gesmer, Higgitt, Michael, Chan, JJ.
Malapero Prisco & Klauber, LLP, New York (Tracy L. Frankel of counsel), for appellants.
The Breakstone Law Firm, P.C., Bellmore (Jay L.T. Breakstone of counsel), for respondent.
Order, Supreme Court, Bronx County (Elizabeth A. Taylor, J.), entered July 1, 2025, which denied the motion of defendants Asphalt Green, Inc. and Terrance A. Brown for summary judgment dismissing the complaint, unanimously reversed, on the law, without costs, the motion granted, and the complaint dismissed. The Clerk is directed to enter judgment accordingly.
Plaintiff worked as a New York City Department of Education (DOE) school aide from 1999 to 2018. Plaintiff alleges that while she was supervising children on a playground at nonparty Public School 306 (PS 306) and standing approximately 10 to 12 feet from a basketball court, she was injured when a basketball hit her in the back after it ricocheted off the rim of the court's hoop.
PS 306 contracted with Asphalt Green to provide a "play coach" and recess enhancement program (REP) for the school. Asphalt Green hired Brown to serve as a basketball coach under the program. Pursuant to the contract dated June 26, 2017, Asphalt Green and PS 306 agreed to "work together" to provide an REP "in recognition that a safe and active recess period is beneficial to the entire school community," and to focus on organizing recess routines and activities "that best utilize space, staff, and other resources to maximize physical activity, safety, and inclusive play." The contract included an outdoor playground map featuring the basketball court, which occupies most of the outdoor space.
The record includes a comprehensive injury report (CIR), signed by Brown, in which he alleges that he threw the ball that bounced off the rim and hit plaintiff in the back. However, Brown subsequently testified during his deposition that a nine- or ten-year-old student threw the ball and that he did not see plaintiff get hit but heard a commotion. He also did not recall signing the CIR.
Defendants established prima facie entitlement to summary judgment by demonstrating as a matter of law that they did not owe a duty of care to plaintiff. Plaintiff was not a party to the contract between PS 306 and Asphalt Green, and a defendant's "contractual obligation, standing alone, will generally not give rise to tort liability in favor of a third party" (Espinal v Melville Snow Contrs., 98 NY2d 136, 138 [2002]; see Eaves Brooks Costume Co. v Y.B.H. Realty Corp., 76 NY2d 220, 226 [1990]). There are exceptions to the general rule. A contracting party can assume a duty of care toward a third party where: 1) "the contracting party, in failing to exercise reasonable care in the performance of his duties, launches a force or instrument of harm"; 2) "the plaintiff detrimentally relies on the continued performance of the contracting party's duties"; or 3) "the contracting party has entirely displaced the other party's duty to maintain the premises safely" (Espinal, 98 NY2d at 140 [internal citations omitted]). However, none of these exceptions apply to this case.
[*2]The facts do not establish that defendants launched an instrument of harm.Brown denied his statement in the CIR that he threw the ball that hit plaintiff and testified that a young child threw the ball. Even assuming arguendo that Brown threw the ball, the record does not demonstrate that Brown failed to exercise reasonable care in the performance of his duties. While Brown testified that usually someone would shout warnings of errant balls, and that he could not recall if there was a warning prior to the incident, the failure to warn does not equate to a failure to exercise reasonable care under the circumstances. A missed basketball shot that bounces off the rim isa frequent occurrence in basketball games. Brown could not reasonably be expected to shout every time a ball hit the rim during a basketball game played by elementary school children. As the motion court correctly found, there was no allegation or evidence that Brown, or anyone else, intentionally threw the basketball at plaintiff. There is no claim that this was anything other than a normal basketball game being played during recess.
The second and third exceptions are also inapplicable here. Plaintiff testified that she was unaware that a game was being played at the time she was hit; thus, she could not have detrimentally relied on the continued performance of defendants' contractual duties (see Espinal, 98 NY2d at 140). Further, defendants' obligations under the contract were not so broad that they entirely displaced PS 306's duty (cf. Palka v Servicemaster Mgt. Servs. Corp., 83 NY2d 579, 589 [1994] ["the very end and aim of the service contract was that [the maintenance company] was to become the sole privatized provider for a safe and clean hospital premises"]). Under the contract, Asphalt Green and PS 306 were jointly responsible for a safe and active recess period.
Even if defendants owed plaintiff a duty of care, the court should have dismissed the complaint based upon plaintiff's voluntary assumption of the risks.Under the primary assumption of risk doctrine, "one is deemed to have assumed, as a voluntary participant, spectator, or even bystander certain risks occasioned by athletic or recreational activity, and to the extent of such an assumption, any legally enforceable duty to reduce the risks of such activity is limited" (Roberts v Boys and Girls Republic, Inc., 51 AD3d 246, 247 [1st Dept 2008], affd 10 NY3d 889 [2008] [internal citations omitted]). "[G]enerally, one is deemed to have assumed those commonly appreciated risks which are inherent in and arise out of the nature of the sport generally and flow from such participation" (id. [internal citation and quotation marks omitted]). "If the risks of the activity are fully comprehended or perfectly obvious, plaintiff has consented . . . and defendant has performed its duty" (Turcotte v Fell, 68 NY2d 432, 439 [1986]).
[*3]Plaintiff testified that she was employed for approximately two decades as a school aide at PS 306, where she monitored children on a large playground with multiple basketball courts. She testified that she was aware that basketball games could be dangerous, and that wayward balls were common, requiring distance from play. Although plaintiff testified that she was unaware that a basketball game was being played at the time of the incident, she does not dispute that for at least 10 minutes beforehand, she stood just 10 to 12 feet from the basketball court on a playground occupied by elementary school children during recess. Plaintiff's own conduct of placingherself near the court during recess, "put [herself] in danger of being struck by a misthrown ball" (Sutfin v Scheuer, 74 NY2d 697, 698 [1989]; see Roberts, 51 AD3d at 248 ["While it is true that plaintiff was not a participant, but a spectator, or perhaps even a mere bystander, she still assumed the risks entailed by her voluntary proximity to the game, among them the risk of being hit by a swung bat"] [internal citation
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