Weithofer v. Unique Racquetball & Health Clubs, Inc.

In an action to recover damages for personal injuries, the defendant appeals from an order of the Supreme Court, Suffolk County (Seidell, J.), dated August 17, 1993, which denied its motion for summary judgment dismissing the complaint. Ordered that the order is reversed, on the law, with costs, the defendant’s motion is granted, and the complaint is dismissed. The plaintiff slipped and injured himself while playing "walleyball” on an indoor court operated by the defendant [784] Unique Raquetball and Health Clubs, Inc. According to the plaintiff, the court was damp and covered with water puddles. Despite this condition, the plaintiff chose to play anyway and injured himself during the game. Notably, the plaintiff had played on the same court, under similar conditions, several times in the past. The Supreme Court denied the defendant’s motion to dismiss; which relied on an assumption of the risk theory. We reverse. The record demonstrates that the injury-producing defect was not concealed and that the plaintiff was fully aware of its existence prior to his voluntary participation in the game (see, Ferraro v Town of Huntington, 202 AD2d 468; Morales v New York City Hous. Auth., 187 AD2d 295, 296; Bryne v Westchester County, 178 AD2d 575). As previously noted, the plaintiff stated that he had played on the very same court on prior occasions when similar conditions existed. Under these circumstances, the doctrine of assumption of the risk warrants the granting of judgment to the defendant (see, Gonzalez v City of New York, 203 AD2d 421; Morales v New York City Hous. Auth., supra, 187 AD2d 295, 296; Russini v Incorporated Vil. of Mineola, 184 AD2d 561; Bryne v Westchester County, supra; Hoffman v City of New York, 172 AD2d 716). Ritter, J. P., Copertino, Joy and Hart, JJ., concur.