        SUPREME COURT OF THE STATE OF NEW YORK
           Appellate Division, Fourth Judicial Department

1004
CA 15-00428
PRESENT: SCUDDER, P.J., SMITH, LINDLEY, VALENTINO, AND WHALEN, JJ.


JUSTIN T. BARENDS, PLAINTIFF-RESPONDENT,

                    V                             MEMORANDUM AND ORDER

TOWN OF CHEEKTOWAGA, DEFENDANT-APPELLANT.


CHELUS, HERDZIK, SPEYER & MONTE, P.C., BUFFALO (KATIE L. RENDA OF
COUNSEL), FOR DEFENDANT-APPELLANT.

LIPSITZ GREEN SCIME CAMBRIA LLP, BUFFALO (JOHN A. COLLINS OF COUNSEL),
FOR PLAINTIFF-RESPONDENT.


     Appeal from an order of the Supreme Court, Erie County (Donna M.
Siwek, J.), entered February 6, 2015. The order denied the motion of
defendant for summary judgment.

     It is hereby ORDERED that the order so appealed from is
unanimously affirmed without costs.

     Memorandum: Plaintiff commenced this action seeking damages for
injuries he sustained in a gymnasium at a community center owned by
defendant. While playing basketball there, plaintiff collided with
and broke a window located near the edge of the basketball court.
Supreme Court properly denied defendant’s motion seeking summary
judgment dismissing the complaint on the ground that plaintiff assumed
the risks associated with playing basketball. It is well settled
that, “by engaging in a sport or recreational activity, a participant
consents to those commonly appreciated risks [that] are inherent in
and arise out of the nature of the sport generally and flow from such
participation” (Morgan v State of New York, 90 NY2d 471, 484; see
Larson v Cuba Rushford Cent. Sch. Dist., 78 AD3d 1687, 1687-1688). “A
plaintiff, however, will not be deemed to have consented to ‘concealed
or unreasonably increased risks’ ” (Menter v City of Olean, 105 AD3d
1405, 1405, quoting Morgan, 90 NY2d at 485; see Andrews v County of
Onondaga, 298 AD2d 837, 838). Here, even assuming, arguendo, that
defendant met its initial burden on the motion, we conclude that
plaintiff raised a triable issue of fact by submitting the affidavit
of a licensed architect who opined that the window involved in the
accident did not meet industry standards for use in a gymnasium
because the glass was not covered by a protective screen, nor was it
laminated or tempered to withstand impact by a person (see Stevens v
Central Sch. Dist. No. 1, 25 AD2d 871, 872, affd 21 NY2d 780). Thus,
there is a triable issue of fact whether defendant “ ‘created a
dangerous condition over and above the usual dangers that are inherent
                                 -2-                          1004
                                                         CA 15-00428

in the sport’ ” of basketball (Morgan, 90 NY2d at 485; see Menter, 105
AD3d at 1405-1406; Andrews, 298 AD2d at 838).




Entered:   October 9, 2015                     Frances E. Cafarell
                                               Clerk of the Court
