Ryder v. Town of Lancaster

289 A.D.2d 995, 735 N.Y.S.2d 312, 2001 N.Y. App. Div. LEXIS 12593

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: December 21, 2001
• Status: Published

Opinion

Order unanimously affirmed without costs. Memorandum: Supreme Court properly denied defendant’s motion seeking summary judgment dismissing the complaint pursuant to the doctrine of assumption of risk. Plaintiffs commenced this action seeking damages for injuries sustained by plaintiff Jerry G. Ryder when he stepped in a six-to eight-inch-deep hole while playing volleyball on a grass court maintained by defendant in Keysa Town Park. The doctrine of assumption of risk “does not exculpate a landowner from liability for ordinary negligence in maintaining a premises” (Sykes v County of Erie, 94 NY2d 912, 913). Thus, although defendant met its initial burden, we conclude that plaintiffs raised a triable issue of fact whether defendant breached a

continuing duty to keep the grass court in good repair (see, Siegel v City of New York, 90 NY2d 471, 488-489). (Appeal from Order of Supreme Court, Erie County, Gorski, J. — Summary Judgment.) Present — Pigott, Jr., P. J., Hayes, Wisner, Scudder and Burns, JJ.