| Brown v City of New York |
| 2010 NY Slip Op 00641 [69 AD3d 893] |
| January 26, 2010 |
| Appellate Division, Second Department |
| George Brown, Respondent, v City of New York,Appellant. |
—[*1] Eric Richman, New York, N.Y. (Judith F. Stempler of counsel), for respondent.
In an action to recover damages for personal injuries, the defendant appeals, as limited by itsbrief, from so much of an order of the Supreme Court, Kings County (Rothenberg, J.), datedDecember 3, 2008, as denied its motion for summary judgment dismissing the complaint.
Ordered that the order is reversed insofar as appealed from, on the law, with costs, and thedefendant's motion for summary judgment dismissing the complaint is granted.
The plaintiff was injured while playing touch football at a public field owned by thedefendant when he dove for the football at the sideline and his knee struck a cement strip whichran alongside the field approximately five feet outside of the sideline. The plaintiff had played atthe field previously and was aware of the presence of the cement strip, which was open andobvious. Indeed, he testified at his deposition that the cement was there for the purpose ofholding down the artificial turf surface of the field.
Following the plaintiff's commencement of this negligence action, the defendant moved forsummary judgment dismissing the complaint on the ground of primary assumption of risk. TheSupreme Court denied the motion. We reverse.
A voluntary participant in a sporting or recreational activity is deemed to consent to "thosecommonly appreciated risks which are inherent in and arise out of the nature of the sportgenerally and flow from such participation" (Morgan v State of New York, 90 NY2d471, 484 [1997]). This principle extends to those risks associated with the construction of theplaying field and any open and obvious condition thereon (see Ziegelmeyer v United States Olympic Comm., 7 NY3d 893[2006]; Sykes v County of Erie, 94 NY2d 912 [2000]; Maddox v City of NewYork, 66 NY2d 270 [1985]; Manoly v City of New York, 29 AD3d 649 [2006]; Colucci vNansen Park, 226 AD2d 336 [1996]; Brown v City of Peekskill, 212 AD2d 658[1995]). If the risks are known by or perfectly obvious to the player, he or she has consented tothem and the property owner has discharged its duty of care by making the conditions as safe asthey appear to be (see Turcotte v Fell, 68 NY2d 432, 439 [1986]; Morales v Coram Materials Corp., 64AD3d 756, 758 [2009]; Joseph vNew York Racing Assn., 28 AD3d 105, 108 [2006]).
The defendant demonstrated its prima facie entitlement to judgment as a matter of [*2]law by establishing that the plaintiff assumed the risk of injury byvoluntarily participating in the football game despite his knowledge that doing so could bringhim into contact with the open and obvious cement strip in the out-of-bounds area of the field(see Trevett v City of Little Falls, 6NY3d 884 [2006]; Ribaudo v LaSalle Inst., 45 AD3d 556 [2007]; Ciocchi v Mercy Coll., 289 AD2d 362 [2001];Kazlow v City of New York, 253 AD2d 411 [1998]). In opposition, the plaintiff failed toraise a triable issue of fact as to whether the defendant unreasonably increased the risk associatedwith the activity of playing football on the subject field. In this regard, the expert affidavitsubmitted by the plaintiff failed to identify the violation of any specific safety standard whichwas applicable to the field (see Musantev Oceanside Union Free School Dist., 63 AD3d 806 [2009]; Miller v Kings Park Cent. SchoolDist., 54 AD3d 314 [2008]; Ribaudo v La Salle Inst., 45 AD3d 556 [2007]; Merson vSyosset Cent. School Dist., 286 AD2d 668 [2001]; Kazlow v City of New York, 253AD2d 411 [1998]). Accordingly, the expert's affidavit was speculative and conclusory (seegenerally Sosa v City of New York, 281 AD2d 469 [2001]; Scola v Sun Intl. N.Am., 279 AD2d 466 [2001]), and was insufficient to defeat the defendant's motion forsummary judgment. Prudenti, P.J., Mastro, Florio and Austin, JJ., concur.