New York State Court of Claims

New York State Court of Claims

CURRIERE v. THE STATE OF NEW YORK, #2004-013-049, Claim No. 103979, Motion No. M-67226


Claimant, an experienced basketball player, assumed the risk of colliding with portable metal stairs stored behind the backboard in a gymnasium at SUNY-Brockport. The Claim is dismissed.

Case Information

Claimant short name:
Footnote (claimant name) :

Footnote (defendant name) :

Third-party claimant(s):

Third-party defendant(s):

Claim number(s):
Motion number(s):
Cross-motion number(s):

Claimant's attorney:
Defendant's attorney:
Attorney General of the State of New York
BY: JAMES L. GELORMINI, ESQ.Assistant Attorney General
Third-party defendant's attorney:

Signature date:
September 29, 2004

Official citation:

Appellate results:

See also (multicaptioned case)


The following papers were read and considered on Defendant's motion for summary judgment:

Notice of Motion and Supporting Affirmation of James L. Gelormini, Esq., with Annexed Exhibits;

Supporting Affidavit of Scott Haines, with Annexed Exhibits;

Affidavit in Opposition of Donald R. Gerace, Esq., with Annexed Exhibits;

Affidavit in Opposition of Frank J. Curriere, Jr.;

Filed papers: Claim, Answer.

Defendant State of New York brings this motion pursuant to CPLR 3212 for summary judgment dismissing the claim on the grounds that the Claimant Frank J. Curriere, Jr. assumed the risk of the injuries he sustained during an intramural basketball game at the State University of New York at Brockport (SUNY-Brockport). Defendant's motion is granted and the claim is dismissed.

On February 8, 2001, at approximately 11:45 p.m., Claimant, then a junior majoring in physical education, was allegedly injured while participating in an intramural game of basketball being played in Room 203 of the Tuttle North Gymnasium at SUNY-Brockport. During the second half of the game, Claimant allegedly blocked a shot and in so doing ran out of bounds where his left arm struck movable metal stairs being stored in Room 203. The metal stairs were located immediately in front of a concrete semicircle (see, pages 52 and 53 of Claimant's deposition transcript, annexed to the affirmation of James L. Gelormini, Esq. as Exhibit 5), more than 7½ feet from the out of bounds line behind the basket (see, ¶9 and ¶10 of the affidavit of Scott Haines and the photographs attached to his affidavit as Exhibits 1 through 4).

After completing one year at a community college, Claimant entered SUNY-Brockport in the fall of 1999 as a sophomore. He was hired by the Campus Open Recreation Department as a staff member. During his second year at SUNY-Brockport, Claimant became employed by Campus Recreation as a student recreation gym supervisor, overseeing 12 subordinate student employees during open recreation periods. While much of his duties involved office paper work, Claimant frequently entered the main gym, Room 202, and occasionally entered the four gyms used for intramural sports, Rooms 201, 203, 205 and 206.[1] Tuttle North houses six gymnasiums, an Olympic-size swimming pool, an ice hockey rink and various viewing stands, locker rooms, offices and storage areas. Gyms 201 and 203 have retractable bleachers that are accessed by portable stairs. When the bleachers are retracted, the portable stairs are stored in gym 201 or 203 or in an adjoining hallway (Claimant's affidavit, ¶ 4 and ¶7; Exhibit 5; Claimant's deposition transcript, pp. 10-11, 26-28 and 34).

As a student recreation gym supervisor, Claimant had to participate in weekly staff meetings. During one of these weekly meetings held in the fall of 2000, Claimant allegedly reported to his supervisors that the placement of some of the portable stairs was a potential hazard. According to Claimant, the portable stairs were frequently stored in the corners of gyms 201 and 203, away from the baselines and baskets, or in the hallway, after he had made his report (Claimant's affidavit, ¶8 and ¶9).

During the 1999-2000 academic year, Claimant played pickup games of basketball about once a week in Tuttle North (Exhibit 5, pp. 11-12). In the fall of 2000 and again in the spring of 2001, before the accident, Claimant played in an intramural basketball league and continued to play informal pickup games (Exhibit 5, pp. 45-50). During this period he observed the portable stairs stored against the bleachers or the walls behind the backboards in Room 203. He also observed event staff move the portable stairs and place them against a wall in order to sweep the gym (Exhibit 5, pp. 36-37, 51).

On February 8, 2001, Claimant played an intramural basketball game in Room 203. About an hour before the game, he practiced with his team in the main gym, Room 202 (Claimant's affidavit, ¶6). Although nothing was covering the portable stairs or blocking his view of them, Claimant did not take mental note of their position in Room 203 until he ran into them during the second half of the game (Exhibit 5, pp. 59-60; Claimant's affidavit, ¶10-E).

In his bill of particulars, Claimant alleges that Defendant negligently allowed him to play basketball in a gymnasium where he could come into contact with portable stairs that were improperly placed in the gym while an intramural game of basketball was being played, failed to remove the portable stairs and failed to warn Claimant of their presence in the gym. Claimant does not allege that the placement of the stairs violated any standards and Scott Haines, the Assistant Director of Recreational Services at SUNY-Brockport, opined that the placement of the portable stairs over 7½ feet from the out-of-bounds line was in accordance with good and accepted standards and practices (Haines affidavit, ¶10).

Defendant now moves for summary judgment on the grounds that Claimant voluntarily assumed the risk of injury. The party moving for summary judgment bears the burden of making a "prima facie showing of entitlement to judgment as a matter of law" by submitting proof that eliminates any material issues of fact (Winegrad v New York Univ. Med. Center, 64 NY2d 851, 853 [1985]). Once the moving party has established its entitlement to judgment, the burden shifts to the party opposing the motion who must lay bare its proof and establish the existence of a triable issue of fact (Hasbrouck v City of Gloversville, 63 NY2d 916 [1984]).

A landowner has a duty to maintain its premises in a reasonably safe condition (Basso v Miller, 40 NY2d 233 [1976]). The State, as a landowner, is subject to the same standard of care that applies to private landowners (Preston v State of New York, 59 NY2d 997 [1983]). However, because intramural sporting activities involve inherent dangers to the participants, the duty the State owes to participants is to "make the conditions as safe as they appear to be." Thus, "[i]f the risks of the activity are fully comprehended or perfectly obvious, [Claimant] has consented to them and defendant has performed its duty" (Morgan v State of New York, 90 NY2d 471, 484 [1997], quoting Turcotte v Fell, 68 NY2d 432, 439 [1986]).

Pursuant to the doctrine of assumption of the risk, an injured party may not prevail when the injuries were incurred as the result of a risk or danger associated with the sport or incurred as the result of any risk associated with the construction of the playing field and any open and obvious defects or obstacles thereon (Maddox v City of New York, 66 NY2d 270 [1985]; Ciocchi v Mercy Coll., 289 AD2d 362 [2001]). Thus, summary judgment was awarded: where plaintiff fell off an exercise apparatus built over a concrete floor (Marcano v City of New York, 99 NY2d 548 [2002]); where plaintiff stepped into a recessed drain located near the free throw line of an outdoor basketball court (Sykes v County of Erie, 94 NY2d 912 [2000]); where plaintiff collided with a badminton pole stored in the corner of a gym (Ciocchi v Mercy Coll., supra); where Claimant collided with a radiator cover located close to an indoor basketball court (Morant v State of New York, Ct Cl, UID #2002-028-510 [Claim No. 104530], Dec. 27, 2002, J. Sise); and where Claimant collided with an unpadded wall behind the backboard of an indoor gym (Marturano v State of New York, Ct Cl, UID #2003-009-113 [Claim No. 102282], June 25, 2003, J. Midey, Jr.).

Here, Defendant established that Claimant was an experienced basketball player who frequently played pickup and intramural games in Tuttle North Gymnasium. Claimant was also a physical education major who was employed by the Recreation Department of SUNY-Brockport as a recreation gym supervisor and frequented the various gyms in Tuttle North as part of his employment. While Claimant denied making a mental note of the exact location of the portable stairs on the night of February 8, 2001, he was aware that the stairs were stored in gym Room 203 and sometimes stored behind the backboard. Moreover, Claimant admitted that there was nothing covering or blocking his view of the portable stairs, and his injuries occurred during the second half of the game, giving him ample opportunity to observe the open and obvious stairs. The risk of running out of bounds after blocking a shot and colliding with these stairs was a risk inherent in the game of basketball which Claimant assumed when he chose to participate in the game.

Accordingly, the motion is granted and the claim must, therefore, be dismissed.

September 29, 2004
Rochester, New York

Judge of the Court of Claims

  1. [1] A sixth gym, Room 204, is used for weight lifting.