DeJesus v. City of New York

Appellate Division of the Supreme Court of New York

DeJesus v. City of New York

29 A.D.3d 401, 815 N.Y.S.2d 502

CourtAppellate Division of the Supreme Court of the State of New York

DecidedMay 18, 2006

StatusPublished

Cited by2 cases

This text of 29 A.D.3d 401 (DeJesus v. City of New York) is published on Counsel Stack Legal Research, covering Appellate Division of the Supreme Court of the State of New York primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

DeJesus v. City of New York, 29 A.D.3d 401, 815 N.Y.S.2d 502 (N.Y. Ct. App. 2006).

Pincite

Opinion

[402]*402Order, Supreme Court, New York County (Michael D. Stallman, J.), entered June 10, 2005, which granted defendants’ motion and cross motion for summary judgment dismissing the complaint, unanimously affirmed, without costs.

This action is barred by the doctrine of assumption of risk. The 14-year-old plaintiff, an experienced cyclist, should have realized that certain risks, including having to swerve to avoid a pedestrian or that his tire might come in contact with the abutting curb, causing him to fall, were inherent in riding a bike on a pedestrian-only cement walkway and are not dangers over and above the usual dangers associated with bicycle riding in an urban area (see Chrem v City of New York, 293 AD2d 301 [2002]).

Even if assumption of risk did not operate as a complete bar, plaintiffs have failed to raise an issue of fact as to the existence of a dangerous condition. Although plaintiffs claimed that the walkway, the curb, or both, was “broken,” plaintiffs’ photographs show only that the curb was not continuous. Defendant Housing Authority is under no common-law or statutory duty to have continuous curbs, or any curb at all for that matter, along pedestrian pathways in housing developments. Furthermore, plaintiffs are unable to show, without resorting to speculation, that the absence of a continuous curb was a substantial cause of the infant plaintiffs accident (see Omer v Rodriguez, 294 AD2d 202 [2002]). Concur—Buckley, P.J., Mazzarelli, Friedman, Sweeny and McGuire, JJ.

Free access — add to your briefcase to read the full text and ask questions with AI

[402]*402Order, Supreme Court, New York County (Michael D. Stallman, J.), entered June 10, 2005, which granted defendants’ motion and cross motion for summary judgment dismissing the complaint, unanimously affirmed, without costs.

This action is barred by the doctrine of assumption of risk. The 14-year-old plaintiff, an experienced cyclist, should have realized that certain risks, including having to swerve to avoid a pedestrian or that his tire might come in contact with the abutting curb, causing him to fall, were inherent in riding a bike on a pedestrian-only cement walkway and are not dangers over and above the usual dangers associated with bicycle riding in an urban area (see Chrem v City of New York, 293 AD2d 301 [2002]).

Even if assumption of risk did not operate as a complete bar, plaintiffs have failed to raise an issue of fact as to the existence of a dangerous condition. Although plaintiffs claimed that the walkway, the curb, or both, was “broken,” plaintiffs’ photographs show only that the curb was not continuous. Defendant Housing Authority is under no common-law or statutory duty to have continuous curbs, or any curb at all for that matter, along pedestrian pathways in housing developments. Furthermore, plaintiffs are unable to show, without resorting to speculation, that the absence of a continuous curb was a substantial cause of the infant plaintiffs accident (see Omer v Rodriguez, 294 AD2d 202 [2002]). Concur—Buckley, P.J., Mazzarelli, Friedman, Sweeny and McGuire, JJ.

Cite This Page — Counsel Stack

Bluebook (online)

29 A.D.3d 401, 815 N.Y.S.2d 502, Counsel Stack Legal Research, https://law.counselstack.com/opinion/dejesus-v-city-of-new-york-nyappdiv-2006.

Opinion

Related

Cite This Page — Counsel Stack