Melko v. Town of Islip

In a negligence action to recover damages for personal injuries, the defendants separately appeal from an order of the Supreme Court, Suffolk County (Brown, J.), entered August 4, 1989, which denied their separate motions for summary judgment.

Ordered, that the order is reversed, on the law, with one bill of costs, the defendants’ motions are granted, and the complaint is dismissed.

The plaintiff was injured when, as he slid toward home plate during an amateur softball game, he came into abrupt contact with a depression in the surface of the field. In their motions for summary judgment, the defendants produced evidence that the plaintiff was aware of the alleged depression on the field, and that he had in fact complained about it before the game. Under these circumstances, it is clear that the risk presented to the players by this defect in the playing surface cannot be viewed as a concealed one, and that it must, therefore, be considered as one which was consciously assumed by the plaintiff (see, Hoffman v City of New York, 172 AD2d 716 [decided herewith]; cf., Henig v Hofstra Univ., 160 AD2d 761). Bracken, J. P., Kunzeman, Sullivan and Rosenblatt, JJ., concur.