| Brookstone v State of New York |
| 2009 NY Slip Op 05895 [64 AD3d 1023] |
| July 16, 2009 |
| Appellate Division, Third Department |
| Mitchell S. Brookstone et al., Appellants, v State of New York,Respondent. (Claim No. 109167.) |
—[*1] Andrew M. Cuomo, Attorney General, Albany (Michael S. Buskus of counsel), forrespondent.
Malone Jr., J. Appeal from a judgment of the Court of Claims (Schaewe, J.), entered January11, 2008, upon a decision of the court following a bifurcated trial in favor of defendant on theissue of liability.
Claimant Mitchell S. Brookstone (hereinafter claimant) was injured while playing a"pick-up" game of basketball on an outdoor asphalt court at Gilbert Lake State Park in OtsegoCounty when, after jumping for a ball headed out of bounds, he landed on an uneven edge of thecourt. Thereafter, claimant and his wife, derivatively, commenced this action alleging, amongother things, that defendant was negligent in the construction and maintenance of the basketballcourt. Following a bifurcated trial, the Court of Claims dismissed the claim, finding that claimantassumed the risks inherent in playing basketball on an outdoor court. Claimants appeal.
A voluntary participant in a sporting or recreational activity consents to the inherent risksarising out of such activity, including "those risks associated with the construction of the playingsurface and any open and obvious condition on it" (Welch v Board of Educ. of City ofN.Y., 272 AD2d 469, 469 [2000]; see Lincoln v Canastota Cent. School Dist., 53 AD3d 851, 852[2008]). Notably, the Court of Appeals has determined that an irregular playing surface is aninherent risk of outdoor basketball (see Sykes v County of Erie, 94 NY2d 912, 913[2000]; Lincoln v Canastota Cent. School Dist., 53 AD3d at 852). Here, contrary toclaimants' [*2]contention, the slightly uneven surface at the edgeof the basketball court was an open and obvious risk and did not constitute an unreasonablydangerous condition (cf. Clark v State of New York, 245 AD2d 413 [1997]).Accordingly, the Court of Claims properly dismissed the claim.
Cardona, P.J., Lahtinen and Stein, JJ., concur; Mercure, J., not taking part. Ordered that thejudgment is affirmed, without costs.