Plaintiff seeks to recover for injuries sustained by her while rollerblading in a park owned by The City of New York ("City"). The City now moves for summary judgment arguing that plaintiff assumed the risks inherent in rollerblading.

Plaintiff in her complaint and in her bill of particulars alleges that she fell because of a crack in the pavement at the park where the accident occurred and that the City was negligent in not maintaining

the park.

At her deposition, plaintiff testified as follows:

A.I have experience with my Rollerblades, about three years so

I am experienced in this. I don't have any problems so suddenly

I stopped, something stopped me and I didn't see it before what

stopped me so I was falling down. I lost my balance, first of all

because for Rollerblades you have to have a good balance.

*****

Q.How often have you typically Rollerblade around here before the

time of the accident?

A.Two or three times a week during the summer.

Q.This ridge in the pavement which seems to run from left to right

slightly diagonally in Exhibit A., do you have any idea how long

this is, this ridge in the pavement, this line here, how long this would

be? (indicating) You can say it in meters.

A.More than one meter, two or three meters.

*****

Q.It looks like just a narrow ridge in the pavement just a few [*2]

centimeters wide.

A.No. Somewhere it's deeper and wider.

Q.All right. At times when you previously Rollerbladed around this

special area had you seen this ridge in the pavement?

A.Yes, I saw this and that's why I tried to Rollerblade around.

The City relies on Stranger v M & T Pretzel, 5 AD3d 471 [2d Dept, 2004] where the Second Department held as follows:

The defendant established its entitlement to judgment

as a matter of law by demonstrating that the plaintiff, an

experienced ice skater, voluntarily continued to skate

despite the alleged defective conditions of the skating

rink surface, and thus assumed the risk.

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See also; Morlock v. Town of North Hempstead, 12 AD3d 652 [2nd Dept 2004]), Gillett v. County of Westchester, 274 AD2d Dept 547 [2nd Dept 2000], Peters v City of New York, 269 AD2d 581 [2nd Dept 2000].

In response, plaintiff argues that the assumption of the risk "has been superceded by comparative negligence as to the degree of culpability of the City and possible contributory negligence on the part of this plaintiff."

The Court of Appeals in Morgan v State of New York, 90 NY2d 471 (1997), considered this argument and observed:

Plaintiffs' argument that the assumption risk

doctrine should not bar their claims at the summary

judgment matter -of-law litigation threshold because

of the enactment of comparative negligence princ-

ciples (CPLR 1411) overlooks a key feature: ass-

sumption of risk, in the context of the risks inherent

in the activities these plaintiffs engaged in, of course, is

no longer treated as a defense to the abandoned contri-

butory negligence equation. Nevertheless, it still helps

and serves to define the standard of care under which

a defendant's duty is defined and circumscribed "because

assumption is risk in this form is really a principal

of no duty or no negligence and so denies the existence

of anyunderlying cause of action. Without a breach of

duty by the defendant, there is thus logically nothing to

compare with any misconduct of the plaintiff' (Prosser and [*3]

Keeton, Torts§ 68 at 496-497[5th ed] . Accordingly, the

analysis of care owed to the plaintiff in the.... sporting

event by a coparticipant and by the proprietor of the

facility in which it takes place must be evaluated by

considering the risks plaintiff assumed when he elected to

participate in the event and how those assumed risks qualified

defendants' duty to him." (cases omitted).

3

Here, where plaintiff was admittedly an experienced skater and acknowledged that she was aware of the alleged defect in the pavement, she assumed the risk of encountering cracks in the surface of the skating pavement in the park. As such, the City's motion for summary judgment is granted. The Clerk of the Court is directed to enter judgment dismissing the complaint with prejudice.

The foregoing constitutes the decision and order of the Court.

_______________________

Robert J. Miller

J.S.C.

April 22, 2008

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