Summary
In Wilck v. Country Pointe at Dix Hills Homeowners Assn., Inc., 111 A.D.3d 822, 975 N.Y.S.2d 145, this Court held that, where the 11–year–old plaintiff "testified at his deposition that he had been playing tennis for several years, was aware of the particular crack prior to his accident, and had generally tried to avoid it when he previously played on that same court," the doctrine of primary assumption of risk required dismissal of the complaint (id. at 823, 975 N.Y.S.2d 145).
Summary of this case from Philius v. City of N.Y.Opinion
2013-11-20
Adam WILCK, etc., et al., respondents, v. COUNTRY POINTE AT DIX HILLS HOMEOWNERS ASSOCIATION, INC., et al., appellants.
Vincent D. McNamara, East Norwich, N.Y. (Anthony Marino of counsel), for appellants. Leav & Steinberg, LLP, New York, N.Y. (Daniela F. Henriques of counsel), for respondents.
Vincent D. McNamara, East Norwich, N.Y. (Anthony Marino of counsel), for appellants. Leav & Steinberg, LLP, New York, N.Y. (Daniela F. Henriques of counsel), for respondents.
MARK C. DILLON, J.P., CHERYL E. CHAMBERS, LEONARD B. AUSTIN, and SHERI S. ROMAN, JJ.
In an action to recover damages for personal injuries, etc., the defendants appeal from an order of the Supreme Court, Nassau County (Brown, J.), entered May 29, 2012, which denied their motion for summary judgment dismissing the complaint.
ORDERED that the order is reversed, on the law, with costs, and the defendants' motion for summary judgment dismissing the complaint is granted.
On September 20, 2010, the plaintiff Adam Wilck (hereinafter the infant plaintiff), while playing tennis with a friend on a tennis court located in a residential complex owned by the defendant Country Pointe at Dix Hills Homeowners Association, Inc., and managed by the defendant Total Community Management Corp., allegedly was injured upon tripping and falling on a crack in the surface of the court and striking his head on a pole. The infant plaintiff, who was 11 years of age at the time of the incident, testified at his deposition that he had been playing tennis for several years, was aware of the particular crack prior to his accident, and had generally tried to avoid it when he previously played on that same court.
The doctrine of primary assumption of risk provides that a voluntary participant in a sporting or recreational activity “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 Zachary G. v. Young Israel of Woodmere, 95 A.D.3d 946, 946, 944 N.Y.S.2d 203; Bendig v. Bethpage Union Free School Dist., 74 A.D.3d 1263, 1264, 904 N.Y.S.2d 731). “This includes those risks associated with the construction of the playing surface and any open and obvious condition on it” (Welch v. Board of Educ. of City of N.Y., 272 A.D.2d 469, 469, 707 N.Y.S.2d 506; see Sykes v. County of Erie, 94 N.Y.2d 912, 913, 707 N.Y.S.2d 374, 728 N.E.2d 973; Maddox v. City of New York, 66 N.Y.2d 270, 277–278, 496 N.Y.S.2d 726, 487 N.E.2d 553; Bendig v. Bethpage Union Free School Dist., 74 A.D.3d at 1264, 904 N.Y.S.2d 731; Casey v. Garden City Park–New Hyde Park School Dist., 40 A.D.3d 901, 902, 837 N.Y.S.2d 186). “If the risks are known by or perfectly obvious to the player, he or she has consented to them and the property owner has discharged its duty of care by making the conditions as safe as they appear to be” (Brown v. City of New York, 69 A.D.3d 893, 893, 895 N.Y.S.2d 442; see Turcotte v. Fell, 68 N.Y.2d 432, 439, 510 N.Y.S.2d 49, 502 N.E.2d 964; Morales v. Coram Materials Corp., 64 A.D.3d 756, 758, 883 N.Y.S.2d 311; Sammut v. City of New York, 37 A.D.3d 811, 812, 830 N.Y.S.2d 779).
The defendants demonstrated their prima facie entitlement to judgment as a matter of law by establishing that the infant plaintiff assumed the risk of injury by voluntarily participating in a tennis match on the subject court ( see Sammut v. City of New York, 37 A.D.3d 811, 830 N.Y.S.2d 779; Morlock v. Town of N. Hempstead, 12 A.D.3d 652, 785 N.Y.S.2d 123; Cevetillo v. Town of Mount Pleasant, 262 A.D.2d 517, 692 N.Y.S.2d 426). In opposition, the plaintiffs failed to raise a triable issue of fact ( see generally Alvarez v. Prospect Hosp., 68 N.Y.2d 320, 508 N.Y.S.2d 923, 501 N.E.2d 572).
The plaintiffs' remaining contentions are without merit.
Accordingly, the Supreme Court should have granted the defendants' motion for summary judgment dismissing the complaint ( see Casey v. Garden City Park–New Hyde Park School Dist., 40 A.D.3d at 902, 837 N.Y.S.2d 186; Sammut v. City of New York, 37 A.D.3d at 812, 830 N.Y.S.2d 779; Morlock v. Town of N. Hempstead, 12 A.D.3d at 653, 785 N.Y.S.2d 123; Gamble v. Town of Hempstead, 281 A.D.2d 391, 391–392, 721 N.Y.S.2d 385; Cevetillo v. Town of Mount Pleasant, 262 A.D.2d at 518, 692 N.Y.S.2d 426; see also Palladino v. Lindenhurst Union Free School Dist., 84 A.D.3d 1194, 1195, 924 N.Y.S.2d 474; Lincoln v. Canastota Cent. School Dist., 53 A.D.3d 851, 853, 861 N.Y.S.2d 488).