Egbebemwen A. Ex Rel. Benedicta A. v. New York City Department of Education

2017 NY Slip Op 1655, 148 A.D.3d 440, 48 N.Y.S.3d 404

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: March 7, 2017
• Docket: 3331 108188/11
• Status: Published

Opinion

Order, Supreme Court, New York County (Margaret A. Chan, J.), entered June 5, 2015, which granted defendants’ motion for summary judgment dismissing the complaint, unanimously affirmed, without costs.

Infant plaintiff, a 15-year-old member of his school’s basketball team, was injured when he tripped on a wrestling mat that he alleges was two to four steps from the baseline of an indoor basketball court, after he tried to dunk the basketball during a lay-up drill. The basketball court was located in a multi-purpose gym, and the wrestling mat, by all accounts, was open and obvious. Plaintiff assumed the risk of injury by voluntarily choosing to participate in the drill, despite his awareness of the presence of the mat, and his knowledge that it posed a potential tripping hazard (see Wallace v City of New York, 138 AD3d 509 [1st Dept 2016], lv denied 27 NY3d 911 [2016]; Latimer v City of New York, 118 AD3d 420 [1st Dept 2014]; Steward v Town of Clarkstown, 224 AD2d 405 [2d Dept 1996], lv denied 88 NY2d 815 [1996]).

We note that dismissal as to the City was required in any event, because it is not a proper party (see Perez v City of New York, 41 AD3d 378 [1st Dept 2007], lv denied 10 NY3d 708 [2008]).

We have considered plaintiffs’ remaining contentions and find them unavailing.

Concur — Acosta, J.P., Richter, Manzanet-Daniels, Gische and Webber, JJ.