| Mondelli v County of Nassau |
| 2008 NY Slip Op 02801 [49 AD3d 826] |
| March 25, 2008 |
| Appellate Division, Second Department |
| Vito Mondelli, Respondent, v County of Nassau et al.,Appellants. |
—[*1] Levin & Chetkof, LLP, Westbury, N.Y. (Howard A. Chetkof of counsel), forrespondent.
In an action to recover damages for personal injuries, the defendants appeal from an order ofthe Supreme Court, Nassau County (Phelan, J.), entered December 27, 2006, which denied theirmotion for summary judgment dismissing the complaint.
Ordered that the order is reversed, on the law, with costs, and the defendants' motion forsummary judgment dismissing the complaint is granted.
"[B]y engaging in a sport or recreational activity, a participant consents to those commonlyappreciated risks which are inherent in and arise out of the nature of the sport generally and flowfrom such participation" (Morgan v State of New York, 90 NY2d 471, 484 [1997]). "It isnot necessary to the application of assumption of risk that the injured plaintiff have foreseen theexact manner in which his or her injury occurred, so long as he or she is aware of the potentialfor injury of the mechanism from which the injury results" (Maddox v City of New York,66 NY2d 270, 278 [1985]). The doctrine of assumption of risk "encompasses risksassociated with the construction of the playing surface" (Morlock v Town of N. Hempstead, 12 AD3d 652, 652 [2004][citations omitted]).
Here, the plaintiff sustained injuries when he fell while attempting to catch a fly ball at theborder of the dirt infield and grass outfield of a baseball field in Eisenhower Park, NassauCounty. The defendants established their prima facie entitlement to judgment as a matter of lawby demonstrating that the plaintiff was aware of a "lip" of dirt that accumulated at theinfield/outfield [*2]border and that he assumed the risk of injurywhen he chose to play on the field (seeMorlock v Town of N. Hempstead, 12 AD3d 652 [2004]; see also Casey v Garden City Park-NewHyde Park School Dist., 40 AD3d 901 [2007]; Steward v Town of Clarkstown,224 AD2d 405, 406 [1996]; cf. Ellis v City of New York, 281 AD2d 177 [2001];Schmerz v Salon, 26 AD2d 691 [1966], affd 19 NY2d 846 [1967]).
In opposition, the plaintiff failed to raise a triable issue of fact. The plaintiff testified at adeposition that he believed that the defendants had dug up the grass on the infield/outfield borderand replaced it in loose, sod-like pieces. This speculative testimony, along with the affidavits ofhis teammates, were insufficient to raise a triable issue of fact in opposition to the defendants'motion for summary judgment (see generally Zuckerman v City of New York, 49 NY2d557, 562 [1980]). Rivera, J.P., Skelos, Santucci and Leventhal, JJ., concur.