| Caraballo v City of Yonkers |
| 2008 NY Slip Op 06949 [54 AD3d 796] |
| September 16, 2008 |
| Appellate Division, Second Department |
| Christopher Caraballo et al., Appellants, v City of Yonkers,Respondent. |
—[*1] Frank J. Rubino, Corporation Counsel, Yonkers, N.Y. (Joseph T. Bonanno of counsel), forrespondent.
In an action to recover damages for personal injuries, etc., the plaintiffs appeal from an orderof the Supreme Court, Westchester County (Colabella, J.), entered March 23, 2007, whichgranted the defendant's motion for summary judgment dismissing the complaint.
Ordered that the order is reversed, on the law, with costs, and the motion for summaryjudgment dismissing the complaint is denied.
On May 24, 2000, the infant plaintiff, then a 12-year-old boy, was injured when the "homemade" bicycle he was riding came into contact with a pothole abutting a manhole cover on astreet in the City of Yonkers. Although the plaintiff was an experienced bicyclist and was awareof the pothole, which was in a street located near his residence, he failed to observe it on thisparticular occasion when he was traveling to his friend's house.
The infant plaintiff and his guardian commenced the instant action against the City to recoverdamages, inter alia, for the City's negligence in failing to maintain the street in a reasonably safecondition. The Supreme Court granted the City's motion for summary judgment dismissing thecomplaint, invoking the bar to recovery arising from the primary assumption-of-risk doctrineapplied to sporting activities. We reverse.
The City failed to establish its prima facie entitlement to judgment as a matter of law (seeAlvarez v Prospect Hosp., 68 NY2d 320, 324 [1986]; Winegrad v New York Univ. Med.Ctr., 64 NY2d 851, [*2]853 [1985]). Contrary to the City'scontention, the infant plaintiff cannot be said, as a matter of law, to have assumed the risk ofbeing injured by a defective condition of a pothole on a public street, merely because he wasparticipating in the activity of recreational noncompetitive bicycling (see Phillips v County of Nassau, 50AD3d 755 [2008]; Moore v City ofNew York, 29 AD3d 751, 752 [2006]; Vestal v County of Suffolk, 7 AD3d 613, 614-615 [2004];Berfas v Town of Oyster Bay, 286 AD2d 466 [2001]), and using the bicycle as a meansof transportation (see Powley v State of New York, 10 Misc 3d 1060[A], 2005 NY SlipOp 52057[U] [2005]). Accordingly, the City's motion should have been denied, regardless of thesufficiency of the plaintiffs' opposition papers. Mastro, J.P., Spolzino, Balkin and Leventhal, JJ.,concur.