| Rodriguez v City of New York |
| 2011 NY Slip Op 01952 [82 AD3d 563] |
| March 17, 2011 |
| Appellate Division, First Department |
| Gerardo Rodriguez, Appellant, v City of New York et al.,Respondents, et al., Defendants. |
—[*1] Michael A. Cardozo, Corporation Counsel, New York (Mordecai Newman of counsel), forrespondents.
Order, Supreme Court, Bronx County (Lucy Billings, J.), entered December 22, 2009, which,in an action for personal injuries sustained when plaintiff spectator was struck in the eye by abaseball as he stood at an open gate in a fence surrounding a baseball field during battingpractice, inter alia, granted the motion of defendants City of New York and the City's Departmentof Parks and Recreation for summary judgment dismissing the complaint, unanimously affirmed,without costs.
Dismissal of the complaint was appropriate since plaintiff assumed the risk that resulted inhis injury (see Roberts v Boys & GirlsRepublic, Inc., 51 AD3d 246, 247 [2008], affd 10 NY3d 889 [2008]). Therecord demonstrates that plaintiff was aware that batting practice was taking place as he wasstanding at the open gate in an effort to call to his young son who was on the field. Contrary toplaintiff's contention, the City did not have a duty to ensure that the subject gate along the thirdbaseline be equipped with a latch or a self-closing mechanism (see Akins v Glens Falls CitySchool Dist., 53 NY2d 325, 331 [1981]). Concur—Andrias, J.P., Saxe, Friedman,Moskowitz and Richter, JJ.