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Austion v. Parkchester South Condominium, Inc.

Supreme Court of New York, First Department

June 13, 2013

Herbert Leroy Austion, Jr., Plaintiff-Appellant,
v.
The Parkchester South Condominium, Inc. et al., Defendants-Respondents.

Clemente Mueller, P.A., New York (Nicole A. Spence of counsel), for appellant.

McGaw, Alventosa & Zajac, Jericho (Ross P. Masler of counsel), for respondents.

Tom, J.P., Friedman, Freedman, Feinman, JJ.

Order, Supreme Court, Bronx County (Julia I. Rodriguez, J.), entered September 27, 2012, which granted defendants' motion for summary judgment dismissing the complaint, unanimously affirmed, without costs.

Dismissal of the complaint was proper in this action where plaintiff alleges that he was injured when, while playing basketball, he slipped on sand that was present on the court. Plaintiff assumed the risks inherent in playing on the outdoor court, and the sand he allegedly slipped on was a result of a naturally occurring condition of the outdoor setting (see Flores v City of New York, 266 A.D.2d 148 [1st Dept 1999]). Plaintiff had played on the subject court on numerous occasions and was familiar with its problem of accumulating sand, which was dealt with by sweeping the court when necessary (see Gibbs v New York City Hous. Auth., 272 A.D.2d 370 [2nd Dept 2000], lv denied 96 N.Y.2d 702 [2001]; see also Milliner v New York City Hous. Auth., 57 A.D.3d 383 [1st Dept 2008]).

We have considered plaintiff's remaining contentions and find them unavailing.


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