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Felton v. City of New York

Supreme Court of New York, First Department

May 14, 2013

Samuel Felton, Plaintiff-Appellant, The
v.
City of New York, Defendant-Respondent.

Sim & Record, LLP, Bayside (Sang J. Sim of counsel), for appellant.

Michael A. Cardozo, Corporation Counsel, New York (Deborah A. Brenner of counsel), for respondent.

Friedman, J.P., Richter, Feinman, Gische, Clark, JJ.

Order, Supreme Court, Bronx County (Larry S. Schachner, J.), entered February 2, 2012, which granted defendant's motion for summary judgment dismissing the complaint, unanimously affirmed, without costs.

Plaintiff, an experienced basketball player who had played on the subject court on numerous occasions, was injured when, while heading toward the rim to take a shot, his ankle twisted and he heard his knee "pop, " causing him to fall to the ground. Plaintiff observed that the court was cracked, repaired and uneven, which he believed to be the cause of his fall. Under the circumstances, dismissal of the complaint was proper since plaintiff assumed the risks associated with playing basketball or warming up to play basketball on this outdoor basketball court (McKey v City of New York, 234 A.D.2d 114, 115 [1st Dept 1996] [internal quotation marks omitted]; see Judge v City of New York, 101 A.D.3d 560 [1st Dept 2012]; Ortiz v City of New York, 101 A.D.3d 446 [1st Dept 2012]). That plaintiff was coaching adolescents rather than playing in an organized game at the time of his injury does not warrant a different determination (compare Trupia v Lake George Cent. School Dist., 14 N.Y.3d 392 [2010]).


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