Alvarado v. City of New York

Alvarado v City of New York (2019 NY Slip Op 00962)

Alvarado v City of New York

2019 NY Slip Op 00962

Decided on February 7, 2019

Appellate Division, First Department

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 February 7, 2019
Acosta, P.J., Gische, Kapnick, Gesmer, Singh, JJ.

159778/15 8337 8336

[*1]Matthew Alvarado, Plaintiff-Appellant,

v

City of New York, Defendant-Respondent.

The Law Offices of Anthony Iadevaia, New York (Susan Davis of counsel), for appellant.

Zachary W. Carter, Corporation Counsel, New York (Dona B. Morris of counsel), for respondent.

Order, Supreme Court, New York County (Alexander M. Tisch, J.), entered October 16, 2017, which granted defendant's motion for summary judgment dismissing the complaint, unanimously affirmed, without costs. Appeal from order, same court and Justice, entered June 28, 2018, which, upon reargument, adhered to its original determination, unanimously dismissed, without costs, as academic.

Defendant made a prima facie showing of its entitlement to judgment as a matter of law, by submitting evidence that plaintiff frequently played basketball on the subject outdoor basketball court, which has an open and obvious crack which runs the length of the court and has a marked tar surface (Wallace v City of New York, 138 AD3d 509 [1st Dept 2016], lv denied 27 NY3d 911 [2016]). The court correctly rejected plaintiff's contention that grass growing out of the crack concealed its depth, finding instead that the grass served to highlight the defect, which was also one of the risks assumed by plaintiff when he chose to play basketball at this location (see Trupia v Lake George Cent. School Dist., 14 NY3d 392 [2010]).

THIS CONSTITUTES THE DECISION AND ORDER

OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.

ENTERED: FEBRUARY 7, 2019

CLERK