Benolol v. City of New York

Order, Supreme Court, New York [415] County (Cynthia S. Kern, J.), entered February 10, 2011, which granted defendants’ motion for summary judgment dismissing the complaint, unanimously affirmed, without costs, and the motion denied. Plaintiff was injured while playing soccer when he tripped over an uneven portion of the artificial turf field. Plaintiff testified that prior to his fall, he had not noticed the allegedly defective condition over which he fell. While “the doctrine of assumption of the risk does not exculpate a landowner from liability for ordinary negligence in maintaining a premises” (Sykes v County of Erie, 94 NY2d 912, 913 [2000]), here defendants established as a matter of law that the uneven condition of the artificial turf was open and obvious, and was not the result of their negligence in maintaining the field (see Ashbourne v City of New York, 82 AD3d 461, 463 [2011]; Simmons v Saugerties Cent. School Dist., 82 AD3d 1407, 1409-1410 [2011]; Maddox v City of New York, 66 NY2d 270 [1985]). Concur — Friedman, J.P., DeGrasse, Freedman and Abdus-Salaam, JJ.