Corona v City of New York
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.
Decided on November 20, 2012
Mazzarelli, J.P., Sweeny, Moskowitz, Renwick, Freedman, JJ.
Order, Supreme Court, Bronx County (Larry S. Schachner, J.), entered March 12, 2012, which granted defendants' motions for summary judgment dismissing the complaint, unanimously affirmed, without costs.
Dismissal of the complaint was warranted in this action where plaintiff was injured while participating in a recreational softball game. As plaintiff was running, he stepped in a rut in the field and injured his leg. It is well established that "[b]y engaging in a sport or recreational activity, a participant consents to those commonly appreciated risks which are inherent in and arise out of the nature of the sport generally and flow from such participation" (Morgan v State of New York, 90 NY2d 471, 484 ). Here, plaintiff assumed the risk of injury by voluntarily participating in the sport of softball and the risks inherent in the sport include those associated with the construction of the playing surface (see Lincoln v Canastota Cent. School Dist., 53 AD3d 851, 852 [3d Dept 2008]). The game was played on a natural surface and plaintiff, had the experience to know that imperfections might be present, and indeed, may have been created or increased over the course of the game (compare Furnari v City of New York, 89 AD3d 605, 606-607 [1st Dept 2011]).
We have considered plaintiff's remaining arguments and find them unavailing.
THIS CONSTITUTES THE DECISION AND ORDER OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.
ENTERED: NOVEMBER 20, 2012
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