Brown v. City of Peekskill

—In an action to recover damages for personal injuries, etc., the defendant appeals from an order of the Supreme Court, Westchester County (Wood, J.), dated March 8, 1994, which denied its motion for summary judgment dismissing the complaint. Ordered that the order is reversed, on the law, with costs, the motion for summary judgment is granted, and the complaint is dismissed. The record demonstrates that the infant plaintiff assumed the risk of the injuries he sustained while voluntarily participating in a basketball game (see, Benitez v New York City Bd. of Educ., 73 NY2d 650; Turcotte v Fell, 68 NY2d 432, 439; see also, Weithofer v Unique Racquetball & Health Clubs, 211 AD2d 783; Gonzalez v City of New York, 203 AD2d 421; Ferrarro v Town of Huntington, 202 AD2d 468; Russini v Incorporated Vil. of Mineola, 184 AD2d 561; Hoffman v City of New York, 172 AD2d 716). The infant plaintiff testified that he was aware of the existence and the dangerous nature of a curb at the particular basketball court where he was injured. He played the game regardless of the condition and was injured when he came down on the curb. We note that the infant plaintiff had played on the court on prior occasions and had voiced his concern about the dangerous nature of the curb. Under these circumstances, the infant plaintiff assumed the risk of his injuries and summary judgment should have been granted to the defendant. Balletta, J. P., Thompson, Santucci, Altman and Hart, JJ., concur.