Mondelli v. County of Nassau
Opinion of the Court
Here, the plaintiff sustained injuries when he fell while attempting to catch a fly ball at the border of the dirt infield and grass outfield of a baseball field in Eisenhower Park, Nassau County. The defendants established their prima facie entitlement to judgment as a matter of law by demonstrating that the plaintiff was aware of a “lip” of dirt that accumulated at the infield/outfield border and that he assumed the risk of injury when he chose to play on the field (see Morlock v Town of N. Hempstead, 12 AJD3d 652 [2004]; see also Casey v Garden City Park-New Hyde Park School Dist., 40 AD3d 901 [2007]; Steward v Town of Clarkstown, 224 AD2d 405, 406 [1996]; cf. Ellis v City of New York, 281 AD2d 177 [2001]; Schmerz v Salon, 26 AD2d 691 [1966], affd 19 NY2d 846 [1967]).
In opposition, the plaintiff failed to raise a triable issue of fact. The plaintiff testified at a deposition that he believed that the defendants had dug up the grass on the infield/outfield border and replaced it in loose, sod-like pieces. This speculative testimony, along with the affidavits of his teammates, were insufficient to raise a triable issue of fact in opposition to the defendants’ motion for summary judgment (see generally Zuckerman v City of New York, 49 NY2d 557, 562 [1980]). Rivera, J.P., Skelos, Santucci and Leventhal, JJ., concur.
Case-law data current through December 31, 2025. Source: CourtListener bulk data.