Opinion
2015-10-9
Justin T. BARENDS, Plaintiff–Respondent, v. TOWN OF CHEEKTOWAGA, Defendant–Appellant.
Chelus, Herdzik, Speyer & Monte, P.C., Buffalo (Katie L. Renda of Counsel), for Defendant–Appellant. Lipsitz Green Scime Cambria LLP, Buffalo (John A. Collins of Counsel), for Plaintiff–Respondent.
Chelus, Herdzik, Speyer & Monte, P.C., Buffalo (Katie L. Renda of Counsel), for Defendant–Appellant. Lipsitz Green Scime Cambria LLP, Buffalo (John A. Collins of Counsel), for Plaintiff–Respondent.
PRESENT: SCUDDER, P.J., SMITH, LINDLEY, VALENTINO, AND WHALEN, JJ.
MEMORANDUM:
Plaintiff commenced this action seeking damages for injuries he sustained in a gymnasium at a community center owned by defendant. While playing basketball there, plaintiff collided with and broke a window located near the edge of the basketball court. Supreme Court properly denied defendant's motion seeking summary judgment dismissing the complaint on the ground that plaintiff assumed the risks associated with playing basketball. It is well settled that, “by engaging in a sport or recreational activity, a participant consents to those commonly appreciated risks [that] are inherent in and arise out of the nature of the sport generally and flow from such participation” (Morgan v. State of New York, 90 N.Y.2d 471, 484, 662 N.Y.S.2d 421, 685 N.E.2d 202; see Larson v. Cuba Rushford Cent. Sch. Dist., 78 A.D.3d 1687, 1687–1688, 912 N.Y.S.2d 827). “A plaintiff, however, will not be deemed to have consented to ‘concealed or unreasonably increased risks' ” (Menter v. City of Olean, 105 A.D.3d 1405, 1405, 964 N.Y.S.2d 372, quoting Morgan, 90 N.Y.2d at 485, 662 N.Y.S.2d 421, 685 N.E.2d 202; see Andrews v. County of Onondaga, 298 A.D.2d 837, 838, 747 N.Y.S.2d 631). Here, even assuming, arguendo, that defendant met its initial burden on the motion, we conclude that plaintiff raised a triable issue of fact by submitting the affidavit of a licensed architect who opined that the window involved in the accident did not meet industry standards for use in a gymnasium because the glass was not covered by a protective screen, nor was it laminated or tempered to withstand impact by a person ( see Stevens v. Central Sch. Dist. No. 1, 25 A.D.2d 871, 872, 270 N.Y.S.2d 23, affd. 21 N.Y.2d 780, 288 N.Y.S.2d 475, 235 N.E.2d 448). Thus, there is a triable issue of fact whether defendant “ ‘created a dangerous condition over and above the usual dangers that are inherent in the sport’ ” of basketball (Morgan, 90 N.Y.2d at 485, 662 N.Y.S.2d 421, 685 N.E.2d 202; see Menter, 105 A.D.3d at 1405–1406, 964 N.Y.S.2d 372; Andrews, 298 A.D.2d at 838, 747 N.Y.S.2d 631).
It is hereby ORDERED that the order so appealed from is unanimously affirmed without costs.