LaSalvia v. City of New York

Appellate Division of the Supreme Court of New York

LaSalvia v. City of New York

305 A.D.2d 267, 759 N.Y.S.2d 79, 2003 N.Y. App. Div. LEXIS 5711

Appellate Division of the Supreme Court of the State of New York·Decided May 20, 2003·Published·Cited by 5 cases

Opinion

Order, Supreme Court, Bronx County (Stanley Green, J.), entered November 2, 2001, which granted defendants’ motion for summary judgment dismissing the complaint, unanimously affirmed, without costs.

The complaint seeks damages for injuries allegedly sustained by plaintiff when he tripped on a schoolyard pavement defect while playing an unsupervised game of touch football. Under the circumstances herein, on a day and time when school was not in session, the 22-year-old plaintiff assumed the risks inherent in the schoolyard touch football game, including any obvious risk posed by the irregular playing surface (see Sykes v County of Erie, 94 NY2d 912, 913 [2000]), and since the defect was not concealed but was plainly visible (cf. Ellis v City of New York, 281 AD2d 177 [2001]), the motion court properly [268] found the defect sufficiently obvious to warrant summary judgment dismissing the complaint (see Furgang v Club Med, 299 AD2d 162 [2002], lv denied 99 NY2d 504 [2003]; McKey v City of New York, 234 AD2d 114 [1996]). Concur — Tom, J.P., Mazzarelli, Rosenberger, Ellerin, Williams, JJ.

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Order, Supreme Court, Bronx County (Stanley Green, J.), entered November 2, 2001, which granted defendants’ motion for summary judgment dismissing the complaint, unanimously affirmed, without costs.

The complaint seeks damages for injuries allegedly sustained by plaintiff when he tripped on a schoolyard pavement defect while playing an unsupervised game of touch football. Under the circumstances herein, on a day and time when school was not in session, the 22-year-old plaintiff assumed the risks inherent in the schoolyard touch football game, including any obvious risk posed by the irregular playing surface (see Sykes v County of Erie, 94 NY2d 912, 913 [2000]), and since the defect was not concealed but was plainly visible (cf. Ellis v City of New York, 281 AD2d 177 [2001]), the motion court properly [268] found the defect sufficiently obvious to warrant summary judgment dismissing the complaint (see Furgang v Club Med, 299 AD2d 162 [2002], lv denied 99 NY2d 504 [2003]; McKey v City of New York, 234 AD2d 114 [1996]). Concur — Tom, J.P., Mazzarelli, Rosenberger, Ellerin, Williams, JJ.

LaSalvia v. City of New York, 305 A.D.2d 267, 759 N.Y.S.2d 79, 2003 N.Y. App. Div. LEXIS 5711 (N.Y. Ct. App. 2003).

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305 A.D.2d 267 (LaSalvia v. City of New York) — published by Counsel Stack Legal Research, free access to 12M+ legal documents.

Opinion

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