Yisrael v. City of New York

Appellate Division of the Supreme Court of New York

Yisrael v. City of New York

38 A.D.3d 647, 832 N.Y.S.2d 598

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

DecidedMarch 13, 2007

StatusPublished

Cited by2 cases

This text of 38 A.D.3d 647 (Yisrael 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

Yisrael v. City of New York, 38 A.D.3d 647, 832 N.Y.S.2d 598 (N.Y. Ct. App. 2007).

Pincite

Opinion

In an action to recover damages for personal injuries, the defendant appeals from an order of the Supreme Court, Kings County (Partnow, J.), dated November 2, 2005, which denied its motion for summary judgment dismissing the complaint.

[648]*648Ordered that the order is reversed on the law, with costs, and the defendant’s motion for summary judgment dismissing the complaint is granted.

The plaintiff was jumping rope on a New York City sidewalk when he tripped on a crack in the pavement, thereby sustaining personal injuries. Notably, the plaintiff had noticed the crack before the accident.

The defendant established, prima facie, its entitlement to judgment as a matter of law by showing that the doctrine of primary assumption of risk applied. The doctrine of primary assumption of risk “is a form of measurement of a defendant’s duty to a voluntary participant in a sporting activity” (Manoly v City of New York, 29 AD3d 649, 649 [2006]; see Morgan v State of New York, 90 NY2d 471, 484 [1997]; Joseph v New York Racing Assn., 28 AD3d 105, 108 [2006]). A plaintiff who voluntarily participates in a sporting or recreational activity is deemed to consent to the apparent or reasonably foreseeable consequences of that activity. “This includes those risks associated with the construction of the playing surface and any open and obvious condition on it” (Welch v Board of Educ. of City of N.Y., 272 AD2d 469 [2000]). Since the plaintiff acknowledged at his examination before trial that he had observed the crack in the pavement on occasions before the day of his accident, as well as on the day of his accident, but prior to it, he assumed the risk of the injuries which he sustained in the accident (see Manoly v City of New York, supra; Joseph v New York Racing Assn., supra).

In opposition to the defendant’s motion, the plaintiff failed to raise a triable issue of fact. Santucci, J.E, Goldstein, Garni and McCarthy, JJ., concur.

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

In an action to recover damages for personal injuries, the defendant appeals from an order of the Supreme Court, Kings County (Partnow, J.), dated November 2, 2005, which denied its motion for summary judgment dismissing the complaint.

[648]*648Ordered that the order is reversed on the law, with costs, and the defendant’s motion for summary judgment dismissing the complaint is granted.

The plaintiff was jumping rope on a New York City sidewalk when he tripped on a crack in the pavement, thereby sustaining personal injuries. Notably, the plaintiff had noticed the crack before the accident.

The defendant established, prima facie, its entitlement to judgment as a matter of law by showing that the doctrine of primary assumption of risk applied. The doctrine of primary assumption of risk “is a form of measurement of a defendant’s duty to a voluntary participant in a sporting activity” (Manoly v City of New York, 29 AD3d 649, 649 [2006]; see Morgan v State of New York, 90 NY2d 471, 484 [1997]; Joseph v New York Racing Assn., 28 AD3d 105, 108 [2006]). A plaintiff who voluntarily participates in a sporting or recreational activity is deemed to consent to the apparent or reasonably foreseeable consequences of that activity. “This includes those risks associated with the construction of the playing surface and any open and obvious condition on it” (Welch v Board of Educ. of City of N.Y., 272 AD2d 469 [2000]). Since the plaintiff acknowledged at his examination before trial that he had observed the crack in the pavement on occasions before the day of his accident, as well as on the day of his accident, but prior to it, he assumed the risk of the injuries which he sustained in the accident (see Manoly v City of New York, supra; Joseph v New York Racing Assn., supra).

In opposition to the defendant’s motion, the plaintiff failed to raise a triable issue of fact. Santucci, J.E, Goldstein, Garni and McCarthy, JJ., concur.

Cite This Page — Counsel Stack

Bluebook (online)

38 A.D.3d 647, 832 N.Y.S.2d 598, Counsel Stack Legal Research, https://law.counselstack.com/opinion/yisrael-v-city-of-new-york-nyappdiv-2007.

Opinion

Related

Cite This Page — Counsel Stack