Wilkes v YMCA of Greater N.Y.

2009 NY Slip Op 09295 [68 AD3d 542]

December 15, 2009

Appellate Division, First Department

As corrected through Wednesday, February 10, 2010

Jerome Wilkes, Appellant, v YMCA of Greater New Yorket al., Respondents.

—[*1]Kenneth J. Gorman, New York, for appellant.

Gordon & Silber, P.C., New York (William L. Hahn of counsel), for respondents.

Order, Supreme Court, Bronx County (Mary Ann Brigantti-Hughes, J.), entered February 11,2009, which granted defendants' motion for summary judgment, unanimously affirmed, withoutcosts.

Defendants made a prima facie showing of entitlement to judgment based on the doctrine ofprimary assumption of the risk by demonstrating that the risk of colliding with the wall wasinherent in the activity, and the condition of the wall was open and obvious (Ribaudo v La Salle Inst., 45 AD3d556 [2007], lv denied 10 NY3d 717 [2008]). Any difference between the wall andthe out-of-bounds line was "perfectly obvious" (McKey v City of New York, 234 AD2d114, 115 [1996]). There was no evidence that defendants had notice of any allegedly wetcondition on the basketball court (see Gordon v American Museum of Natural History,67 NY2d 836 [1986]).

The affidavit of the plaintiff's expert, who opined that defendants were negligent for failingto pad the wall behind the basket, given the proximity of the wall to the out-of-bounds line, wasinsufficient to raise a triable issue of fact, since the expert failed to identify any specific industrystandard relied upon in reaching her opinion (see Musante v Oceanside Union Free School Dist., 63 AD3d 806,808 [2009], lv denied 13 NY3d 704 [2009]; Hotaling v City of New York, 55 AD3d 396 [2008], affd12 NY3d 862 [2009]; cf. Greenburg v Peekskill City School Dist., 255 AD2d 487[1998]). Concur—Friedman, J.P., Sweeny, Freedman and Abdus-Salaam, JJ.