You are here: / / DEFENDANTS DID NOT DEMONSTRATE PLACEMENT OF A FLOWER POT NEAR THE BASKETBALL...

DEFENDANTS DID NOT DEMONSTRATE PLACEMENT OF A FLOWER POT NEAR THE BASKETBALL COURT DID NOT UNREASONABLY INCREASE THE INHERENT RISKS OF PLAYING BASKETBALL, SUMMARY JUDGMENT SHOULD NOT HAVE BEEN GRANTED.

The Second Department, reversing Supreme Court, determined defendant failed to make out a prima facie case warranting summary judgment. Plaintiff was injured playing basketball on defendant’s property when he fell on a flower pot which was near the post supporting the backboard. The evidence failed to eliminate a triable issue whether the placement of the flower pot unreasonably increased the inherent risks:

 

… [D]efendants failed to establish, prima facie, that the doctrine of primary assumption of the risk barred the plaintiff’s recovery. The evidence submitted by the defendants, including testimony as to the size and placement of the flowerpot in close proximity to the paved court, failed to eliminate a triable issue as to whether its placement unreasonably increased the inherent risks of the activity … . Moreover, contrary to their contention, the defendants failed to establish, prima facie, that they did not create or have actual or constructive notice of the alleged condition … .  Simone v Doscas, 2016 NY Slip Op 05709, 2nd Dept 8-3-16

NEGLIGENCE (DEFENDANTS DID NOT DEMONSTRATE PLACEMENT OF A FLOWER POT NEAR THE BASKETBALL COURT DID NOT UNREASONABLY INCREASE THE INHERENT RISKS OF PLAYING BASKETBALL, SUMMARY JUDGMENT SHOULD NOT HAVE BEEN GRANTED)/ASSUMPTION OF RISK (DEFENDANTS DID NOT DEMONSTRATE PLACEMENT OF A FLOWER POT NEAR THE BASKETBALL COURT DID NOT UNREASONABLY INCREASE THE INHERENT RISKS OF PLAYING BASKETBALL, SUMMARY JUDGMENT SHOULD NOT HAVE BEEN GRANTED)/BASKETBALL (ASSUMPTION OF RISK, DEFENDANTS DID NOT DEMONSTRATE PLACEMENT OF A FLOWER POT NEAR THE BASKETBALL COURT DID NOT UNREASONABLY INCREASE THE INHERENT RISKS OF PLAYING BASKETBALL, SUMMARY JUDGMENT SHOULD NOT HAVE BEEN GRANTED)

You might also like
AFTER THE SECOND DEPARTMENT’S VACATION OF DEFENDANT’S “ENDANGERING THE WELFARE OF A PHYSICALLY DISABLED CHILD” CONVICTION (BY GUILTY PLEA) ON “ACTUAL INNOCENCE” GROUNDS WAS REVERSED BY THE COURT OF APPEALS, THE SECOND DEPARTMENT AGAIN VACATED THE CONVICTION ON “INEFFECTIVE ASSISTANCE” GROUNDS; THE MEDICAL RECORDS INDICATED THE CHILD WAS NOT BURNED BY HOT WATER, BUT RATHER SUFFERED AN ALLERGIC REACTION TO MEDICATION (SECOND DEPT). ​
ASSUMPTION OF RISK DEFENSE DID NOT APPLY TO STUDENT-ATHLETE’S PARTICIPATION IN UNSUPERVISED “HORSEPLAY;” SCHOOL’S SUMMARY JUDGMENT MOTION SHOULD NOT HAVE BEEN GRANTED.
THE DEATH OF ONE OF THE DEFENDANTS DURING THE FORECLOSURE PROCEEDINGS RENDERED THE JUDGMENT OF FORECLOSURE, WHICH INCLUDED A DEFICIENCY JUDGMENT AGAINST THE DECEASED DEFENDANT, A NULLITY (SECOND DEPT).
THE TOWN BOARD OF APPEALS’ FAILURE TO ISSUE A DECISION ON PETITIONER’S APPLICATION FOR A SPECIAL EXCEPTION PERMIT AND AN AREA VARIANCE WITHIN THE 62 DAYS PRESCRIBED BY THE TOWN LAW WAS NOT A DENIAL BY DEFAULT; THEREFORE SUPREME COURT DID NOT HAVE SUBJECT MATTER JURISDICTION AND THE MATTER WAS NOT RIPE FOR REVIEW; SUPREME COURT SHOULD NOT HAVE ANNULLED THE “DEFAULT DENIAL” AND ORDERED THE TOWN TO ISSUE THE PERMIT AND VARIANCE (SECOND DEPT).
Untimely Summary Judgment Motion Which Is Nearly Identical to a Summary Judgment Motion Already Before the Court Should Be Considered
HEARSAY CAN BE SUBMITTED IN OPPOSITION TO A MOTION FOR SUMMARY JUDGMENT, BUT HEARSAY ALONE WILL NOT DEFEAT THE MOTION.
HOTEL WAS NEGLIGENT AS A MATTER OF LAW IN THIS THIRD-PARTY ASSAULT CASE, PLAINTIFF’S DECEDENT WAS STABBED TO DEATH AT A PARTY AT THE HOTEL, THERE WAS AN EXTENSIVE HISTORY OF CRIMINAL ACTIVITY AT THE HOTEL AND THERE WAS NO SECURITY ON THE NIGHT OF THE STABBING (SECOND DEPT). ​
Town Not Liable for Negligently Picking Up Personal Items from Driveway During Garbage Collection—Garbage Collection Is a Ministerial Function—No Special Relationship with Plaintiff

Categories

Sign Up for the Mailing List to Be Notified When the Site Is Updated.

  • This field is for validation purposes and should be left unchanged.

Copyright © 2026 New York Appellate Digest, Inc.
Site by CurlyHost | Privacy Policy

GRANDMOTHER ENTITLED TO HEARING ON HER PETITION FOR CUSTODY, HEARING SHOULD... DEFENDANTS DID NOT DEMONSTRATE SURGICAL CONSENT FORM COMPLIED WITH THE ACCEPTED...