McCrorey v. City of Buffalo

—Order reversed on the law without costs, motion denied and complaint reinstated. Memorandum: Plaintiff sustained serious injuries when he ran into a chain link fence during warm-up prior to a game of softball on a field owned by defendant. Supreme Court granted summary judgment dismissing the complaint based on plaintiff’s assumption of the risk. That was error. By his expert’s affidavit, 909 plaintiff raised questions of fact whether the construction of the field and the height and condition of the fence present risks that are inherent in the sport of softball and that plaintiff assumed (see, Turcotte v Fell, 68 NY2d 432, 443-444, discussing Cole v New York Racing Assn., 24 AD2d 993, affd 17 NY2d 761; Lamey v Foley, 188 AD2d 157; see also, Radwaner v USTA Natl. Tennis Ctr., 189 AD2d 605). All concur except Balio and Doerr, JJ., who dissent and vote to affirm in the following Memorandum.