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Milliner v. New York City Housing Authority

NEW YORK SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT


December 23, 2008

BRANDON MILLINER, AN INFANT BY HIS MOTHER AND NATURAL GUARDIAN, THERESA MCMULLIN, ET AL., PLAINTIFFS-APPELLANTS,
v.
NEW YORK CITY HOUSING AUTHORITY, ET AL., DEFENDANTS-RESPONDENTS. [AND A THIRD-PARTY ACTION]

Order, Supreme Court, Bronx County (Mark Friedlander, J.), entered September 5, 2007, which granted defendants' motions for summary judgment dismissing the complaint, unanimously affirmed, without costs.

Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.

This opinion is uncorrected and subject to revision before publication in the Official Reports.

Tom, J.P., Saxe, Catterson, Moskowitz, DeGrasse, JJ.

8368/05

Dismissal of the complaint was appropriate since plaintiff assumed the risks inherent in playing basketball outdoors (see Sykes v County of Erie, 94 NY2d 912 [2000]; LaSalvia v City of New York, 305 AD2d 267 [2003]; McKey v City of New York, 234 AD2d 114 [1996]). The evidence establishes that plaintiff, an experienced basketball player who was familiar with the subject court's playing surface and its depressions, slipped in a puddle of water and fell. Indeed, plaintiff acknowledged that he had been playing on the court for about an hour and a half prior to his fall and was aware of the puddle.

The court properly found the expert's affidavit submitted by plaintiff to be of no probative value because it was vague and unsubstantiated (see Ramos v Diaz v New York Downtown Hosp., 99 NY2d 542, 544 [2002]; Parris v Port of N.Y. Auth., 47 AD3d 460, 461 [2008]).

THIS CONSTITUTES THE DECISION AND ORDER OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.

20081223

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