Opinion
February 14, 1994
Appeal from the Supreme Court, Nassau County (McCaffrey, J.).
Ordered that the order is reversed, on the law, with costs payable by the plaintiff-respondent to the appellant, the motion is granted, the complaint insofar as it is asserted against the Town of Oyster Bay and all cross claims asserted against it are dismissed, and the action is severed with respect to the remaining defendant.
This action was commenced to recover damages for injuries allegedly sustained by the infant plaintiff during a little league baseball game when his foot struck a depression in the playing field while he was sliding into home plate. The playing field is owned and maintained by the defendant Town of Oyster Bay. The Town moved for summary judgment dismissing the complaint and all cross claims against it on the grounds that it never received prior written notice of the purported defect and, in any event, that the infant plaintiff assumed the risk of injury by voluntarily engaging in the game. The Supreme Court denied the motion, reasoning that an issue of fact existed regarding whether the defect was created by the Town and was not assumed by the infant plaintiff. We reverse.
Pursuant to Town of Oyster Bay Code § 46 (1) (b), this action could not be maintained unless the Town received prior written notice of the alleged defect. It is undisputed that no such notice was received, and the Town made a prima facie showing of its entitlement to judgment as a matter of law (see, Winegrad v New York Univ. Med. Ctr., 64 N.Y.2d 851) by submitting evidence to this effect in affidavit form (see generally, Monteleone v Incorporated Vil. of Floral Park, 74 N.Y.2d 917 ; Zigman v. Town of Hempstead, 120 A.D.2d 520). The plaintiff failed to raise a genuine triable issue of fact with respect to the contention that the Town created or caused the alleged defect so as to obviate the requirement of prior written notice (see generally, Gormley v. County of Nassau, 150 A.D.2d 342). Rather, their opposition papers were speculative and contained no actual evidence that the Town created or caused the condition (see, e.g., Nahles v. County of Nassau, 180 A.D.2d 671; Dabbs v. City of Peekskill, 178 A.D.2d 577; West v. Village of Mamaroneck, 172 A.D.2d 827; Palkovic v. Town of Brookhaven, 166 A.D.2d 566; Pittel v. Town of Hempstead, 154 A.D.2d 581). Accordingly, the Town is entitled to summary judgment.
In any event, it is clear that the infant plaintiff, who had played little league baseball for several years and who voluntarily participated in the game, assumed the foreseeable risk that he might be injured by sliding upon the uneven terrain of the ballfield (see, e.g., Turcotte v. Fell, 68 N.Y.2d 432; Melko v. Town of Islip, 172 A.D.2d 729; Hoffman v. City of New York, 172 A.D.2d 716; Checchi v. Socorro, 169 A.D.2d 807; Robinson v. Town of Babylon, 166 A.D.2d 434). The Town discharged its duty of making the premises as safe as they appeared to be (see, Pascucci v. Town of Oyster Bay, 186 A.D.2d 725; Gallagher v. Town of N. Hempstead, 144 A.D.2d 637). Bracken, J.P., Sullivan, Rosenblatt and Copertino, JJ., concur.