Opinion
04-12-2016
James WALLACE, Plaintiff–Appellant, v. The CITY OF NEW YORK, et al., Defendants–Respondents.
Pollack, Pollack, Isaac & DeCicco, LLP, New York (Beth S. Gereg of counsel), for appellant. Zachary W. Carter, Corporation Counsel, New York (Devin Slack of counsel), for respondents.
Pollack, Pollack, Isaac & DeCicco, LLP, New York (Beth S. Gereg of counsel), for appellant.
Zachary W. Carter, Corporation Counsel, New York (Devin Slack of counsel), for respondents.
Order, Supreme Court, Bronx County (Betty Owen Stinson, J.), entered December 18, 2014, which granted defendants' motion for summary judgment dismissing the complaint, unanimously affirmed, without costs.
Defendants made a prima facie showing of their entitlement to judgment as a matter of law, by submitting evidence showing that plaintiff, an experienced basketball player, voluntarily chose to play basketball on an outdoor court that had an open and obvious defect on its surface (see McKey v. City of New York, 234 A.D.2d 114, 115, 650 N.Y.S.2d 706 [1st Dept1996] ). The crack and/or hole in the basketball court's surface that allegedly caused plaintiff's injury was one of the risks he assumed when he decided to play basketball on the court, which was located in a public park owned and maintained by defendants (see Felton v. City of New York, 106 A.D.3d 488, 489, 965 N.Y.S.2d 414 [1st Dept.2013] ; Ortiz v. City of New York, 101 A.D.3d 446, 954 N.Y.S.2d 455 [1st Dept.2012] ). The photographs of the defect and plaintiff's testimony that nothing was blocking the defect before he stepped on it demonstrate that the defect was open and obvious (see LaSalvia v. City of New York, 305 A.D.2d 267, 267–268, 759 N.Y.S.2d 79 [1st Dept.2003] ).
Plaintiff's expert affidavits failed to raise a triable issue of fact, because the experts' assertions are speculative or unsupported by any evidentiary foundation or industry standard ( Amaya v. Denihan Ownership Co., LLC, 30 A.D.3d 327, 327, 818 N.Y.S.2d 199 [1st Dept.2006] ).
We have considered plaintiff's remaining contentions and find them unavailing.
TOM, J.P., ANDRIAS, MANZANET–DANIELS, KAPNICK, GESMER, JJ., concur.