Opinion
03-07-2017
EGBEBEMWEN A., an infant by his mother and natural guardian Benedicta A., et al., Plaintiffs–Appellants, v. NEW YORK CITY DEPARTMENT OF EDUCATION, et al., Defendants–Respondents.
Harnick & Harnick, P.C., New York (Jackie L. Gross of counsel), for appellants. Zachary W. Carter, Corporation Counsel, New York (Janet L. Zaleon of counsel), for respondents.
Harnick & Harnick, P.C., New York (Jackie L. Gross of counsel), for appellants.
Zachary W. Carter, Corporation Counsel, New York (Janet L. Zaleon of counsel), for respondents.
ACOSTA, J.P., RICHTER, MANZANET–DANIELS, GISCHE, WEBBER, JJ.
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 A.D.3d 509, 28 N.Y.S.3d 313 [1st Dept.2016], lv. denied 27 N.Y.3d 911, 2016 WL 3582592 [2016] ; Latimer v. City of New York, 118 A.D.3d 420, 987 N.Y.S.2d 58 [1st Dept.2014] ; Steward v. Town of Clarkstown, 224 A.D.2d 405, 638 N.Y.S.2d 125 [2d Dept.1996], lv. denied 88 N.Y.2d 815, 651 N.Y.S.2d 16, 673 N.E.2d 1243 [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 A.D.3d 378, 837 N.Y.S.2d 571 [1st Dept.2007], lv. dismissed 10 N.Y.3d 708, 859 N.Y.S.2d 393, 889 N.E.2d 80 [2008] ).
We have considered plaintiffs' remaining contentions and find them unavailing.