Opinion
2017–04456 Index No. 30614/09
03-27-2019
J.R., etc., et al., Respondents, v. CITY OF NEW YORK, Defendant, New York City Housing Authority, Appellant.
Lester Schwab Katz & Dwyer, LLP (Steven B. Prystowsky of counsel), for appellant. Popkin & Popkin, LLP, New York, N.Y. (Eric F. Popkin of counsel), for respondents.
Lester Schwab Katz & Dwyer, LLP (Steven B. Prystowsky of counsel), for appellant.
Popkin & Popkin, LLP, New York, N.Y. (Eric F. Popkin of counsel), for respondents.
RUTH C. BALKIN, J.P., CHERYL E. CHAMBERS, ROBERT J. MILLER, ANGELA G. IANNACCI, JJ.
DECISION & ORDERORDERED that the order is affirmed, with costs.
The then 11–year–old infant plaintiff allegedly was injured when she fell from playground equipment located outside a building owned by the defendant New York City Housing Authority (hereinafter NYCHA) and landed on the asphalt surface below. The infant plaintiff, by her mother and natural guardian, and her mother suing derivatively, commenced this action against NYCHA and the defendant City of New York, alleging that the defendants failed to maintain the playground in a reasonably safe condition due to the use of an asphalt surface below the playground equipment. NYCHA moved for summary judgment dismissing the complaint insofar as asserted against it, arguing that it was not foreseeable that children would climb on the "play house" equipment and, therefore, the asphalt surface was not inherently dangerous, the asphalt surface was not a proximate cause of the infant plaintiff's injuries, and the infant plaintiff had assumed the risk of falling from the equipment to the asphalt. The Supreme Court denied NYCHA's motion, and NYCHA appeals.
A landowner is under a duty to maintain its premises in a reasonably safe condition "in view of all the circumstances, including the likelihood of injury to others, the seriousness of the injury, and the burden of avoiding the risk" ( Basso v. Miller , 40 N.Y.2d 233, 241, 386 N.Y.S.2d 564, 352 N.E.2d 868 [internal quotation marks omitted]; see Rhabb v. New York City Hous. Auth. , 41 N.Y.2d 200, 202, 391 N.Y.S.2d 540, 359 N.E.2d 1335 ). "To be entitled to summary judgment in a premises liability case, the defendant is required to show, prima facie, that it maintained its premises in a reasonably safe condition and that it did not have notice of or create a dangerous condition that posed a foreseeable risk of injury to persons expected to be on the premises" ( Taub v. JMDH Real Estate of Garden City Warehouse, LLC , 150 A.D.3d 1301, 1302, 56 N.Y.S.3d 220 ). Foreseeability includes what the defendant actually knew, as well as what it reasonably should have known (see Sanchez v. State of New York , 99 N.Y.2d 247, 255, 754 N.Y.S.2d 621, 784 N.E.2d 675 ; Ruiz v. Griffin , 71 A.D.3d 1112, 1114–1115, 898 N.Y.S.2d 590 ), and is generally an issue of fact for the factfinder (see Lynch v. Bay Ridge Obstetrical & Gynecological Assoc. , 72 N.Y.2d 632, 636, 536 N.Y.S.2d 11, 532 N.E.2d 1239 ; Derdiarian v. Felix Contr. Corp. , 51 N.Y.2d 308, 315, 434 N.Y.S.2d 166, 414 N.E.2d 666 ).
Here, NYCHA failed to meet its initial burden of demonstrating its prima facie entitlement to judgment as a matter of law. In support of its motion, NYCHA submitted, inter alia, an affidavit from its expert, who opined that the equipment was not intended for climbing and therefore no protective surfacing was necessary under the applicable standards. NYCHA also offered evidence that there were no prior accidents involving the equipment. Additionally, NYCHA also submitted the transcripts from the depositions and from the General Municipal Law § 50–h hearings at which the infant plaintiff and her mother testified that the infant plaintiff and other children often climbed on the equipment over the course of four years. Further, the infant plaintiff's mother testified at her deposition that she had complained to the groundskeeper that the placement of mats was necessary. This testimony revealed triable issues of fact as to whether it was foreseeable that the infant plaintiff would climb on the subject playground equipment and whether protective surfacing was therefore reasonably necessary (see Smith v. New York City Hous. Auth. , 52 A.D.3d 808, 809, 861 N.Y.S.2d 379 ; see generally Peralta v. Henriquez , 100 N.Y.2d 139, 144, 760 N.Y.S.2d 741, 790 N.E.2d 1170 ). Further, NYCHA failed to establish, prima facie, that the use of an asphalt surface was not a proximate cause of the infant plaintiff's injuries or that the infant plaintiff's act of climbing on the equipment was so reckless and unforeseeable as to break the causal connection between the allegedly dangerous condition and her injuries (see Sniatecki v. Violet Realty, Inc. , 98 A.D.3d 1316, 1319, 951 N.Y.S.2d 628 ; Roberts v. New York City Hous. Auth. , 257 A.D.2d 550, 550, 685 N.Y.S.2d 23 ; Rosario v. City of New York , 157 A.D.2d 467, 470–471, 549 N.Y.S.2d 661 ).
NYCHA also failed to meet its initial burden of demonstrating its prima facie entitlement to judgment as a matter of law based on the doctrine of primary assumption of risk. Under that doctrine, "by engaging in a sport or recreational activity, a participant consents to those commonly appreciated risks which 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 Custodi v. Town of Amherst , 20 N.Y.3d 83, 88, 957 N.Y.S.2d 268, 980 N.E.2d 933 ; Zachary G. v. Young Israel of Woodmere , 95 A.D.3d 946, 946, 944 N.Y.S.2d 203 ). Assumption of risk is not an absolute defense but a measure of the defendant's duty of care (see Turcotte v. Fell , 68 N.Y.2d 432, 439, 510 N.Y.S.2d 49, 502 N.E.2d 964 ). If the risks are known by or perfectly obvious to the player, he or she has consented to them and the defendant has discharged its duty of care by making the conditions as safe as they appear to be (see id. at 439, 510 N.Y.S.2d 49, 502 N.E.2d 964 ; Brown v. City of New York , 69 A.D.3d 893, 893, 895 N.Y.S.2d 442 ). "[T]he doctrine requires not only knowledge of the injury-causing defect but also appreciation of the resultant risk," which is assessed against the background of the skill and experience of the particular plaintiff ( Maddox v. City of New York , 66 N.Y.2d 270, 278, 496 N.Y.S.2d 726, 487 N.E.2d 553 ; see Morgan v. State of New York , 90 N.Y.2d at 486, 662 N.Y.S.2d 421, 685 N.E.2d 202 ; Brown v. Roosevelt Union Free Sch. Dist. , 130 A.D.3d 852, 854, 14 N.Y.S.3d 140 ). Here, although the infant plaintiff climbed on the subject playground equipment often over four years, NYCHA failed to establish, prima facie, that she was aware of and fully appreciated the risks involved with falling from the playground equipment onto an asphalt surface, rather than onto an impact-resistant surface (see Douglas v. John Hus Moravian Church of Brooklyn, Inc. , 8 A.D.3d 327, 329, 778 N.Y.S.2d 77 ; cf. Auwarter v. Malverne Union Free School Dist. , 274 A.D.2d 528, 529, 715 N.Y.S.2d 852 ).Accordingly, we agree with the Supreme Court's determination to deny NYCHA's motion for summary judgment dismissing the complaint insofar as asserted against it, regardless of the sufficiency of the plaintiffs' opposing papers (see Winegrad v. New York Univ. Med. Ctr. , 64 N.Y.2d 851, 853, 487 N.Y.S.2d 316, 476 N.E.2d 642 ).
BALKIN, J.P., CHAMBERS, MILLER and IANNACCI, JJ., concur.