Lester v. City of New York

Appellate Division of the Supreme Court of New York

Lester v. City of New York

234 A.D.2d 92, 650 N.Y.S.2d 235, 1996 N.Y. App. Div. LEXIS 12391

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

DecidedDecember 10, 1996

StatusPublished

Cited by2 cases

This text of 234 A.D.2d 92 (Lester 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

Lester v. City of New York, 234 A.D.2d 92, 650 N.Y.S.2d 235, 1996 N.Y. App. Div. LEXIS 12391 (N.Y. Ct. App. 1996).

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Opinion

—Order, Supreme Court, New York County (Fern Fisher-Brandveen, J.), entered on or about December 1, 1995, which denied defendant’s motion for summary judgment dismissing the complaint, unanimously affirmed, without costs.

Plaintiff, an experienced amateur hockey player, asserted that he was injured during a recreational hockey game, on newly resurfaced ice, when his skate blade caught in a 3/4 inch gap, obscured by water and slush, between the ice surface and the surrounding wall known as the "boards”. This case is distinguishable from those in which skaters were found, as matter of law, to have assumed the risk of injury due to poor quality ice surfaces (see, e.g., Byrne v Westchester County, 178 AD2d 575), because the defect here could be viewed by a trier of fact as unusual, unexpected, and virtually undetectable (compare, Schmerz v Salon, 26 AD2d 691, affd 19 NY2d 846, with Maddox v City of New York, 66 NY2d 270). Since defendants had the responsibility to ensure that the ice was as safe as it appeared to be (Nunez v Recreation Rooms & Settlement, 229 AD2d 359), there are triable factual issues concerning defendants’ negligence. Concur—Milonas, J. P., Ellerin, Rubin, Kupferman and Nardelli, JJ.

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—Order, Supreme Court, New York County (Fern Fisher-Brandveen, J.), entered on or about December 1, 1995, which denied defendant’s motion for summary judgment dismissing the complaint, unanimously affirmed, without costs.

Plaintiff, an experienced amateur hockey player, asserted that he was injured during a recreational hockey game, on newly resurfaced ice, when his skate blade caught in a 3/4 inch gap, obscured by water and slush, between the ice surface and the surrounding wall known as the "boards”. This case is distinguishable from those in which skaters were found, as matter of law, to have assumed the risk of injury due to poor quality ice surfaces (see, e.g., Byrne v Westchester County, 178 AD2d 575), because the defect here could be viewed by a trier of fact as unusual, unexpected, and virtually undetectable (compare, Schmerz v Salon, 26 AD2d 691, affd 19 NY2d 846, with Maddox v City of New York, 66 NY2d 270). Since defendants had the responsibility to ensure that the ice was as safe as it appeared to be (Nunez v Recreation Rooms & Settlement, 229 AD2d 359), there are triable factual issues concerning defendants’ negligence. Concur—Milonas, J. P., Ellerin, Rubin, Kupferman and Nardelli, JJ.

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Bluebook (online)

234 A.D.2d 92, 650 N.Y.S.2d 235, 1996 N.Y. App. Div. LEXIS 12391, Counsel Stack Legal Research, https://law.counselstack.com/opinion/lester-v-city-of-new-york-nyappdiv-1996.

Opinion

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