New York State Court of Claims

New York State Court of Claims

BASS v. THE STATE OF NEW YORK, #2008-033-297, Claim No. 113246, Motion No. M-74434


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):

James J. Lack
Claimant’s attorney:
Levine & GrossmanBy: Michelle F. Laskin, Esq.
Defendant’s attorney:
Andrew M. Cuomo, New York State Attorney GeneralBy: Kimberly A. Kinirons, Assistant Attorney General
Third-party defendant’s attorney:

Signature date:
June 26, 2008

Official citation:

Appellate results:

See also (multicaptioned case)


This is a claim for damages arising from the alleged personal injuries of Gregory Bass (hereinafter "claimant") sustained on September 30, 2006 as the result of a trip and fall on a tennis court at Hempstead Lake State Park, Hempstead, New York. The claim of Louren Bass is derivative in nature.

Defendant moves for summary judgment, to dismiss this matter pursuant to CPLR 3212[1]. Defendant argues that claimant assumed the risk of injury as the result of participating in an athletic event.

In opposition, claimant argues that the defect is not one normally associated with playing tennis. Further, claimant argues the defect was not open and obvious and therefore, the risk could not be assumed by claimant.

Summary judgment is a drastic remedy which deprives a party of its day in court and should not be granted where there is any doubt as to the existence of a material issue of fact (Moskowitz v Garlock, 23 AD2d 943; Epstein v Scally, 99 AD2d 713). The Court's function is to determine if an issue exists. In doing so, the Court must examine the proof in a light most favorable to the party opposing the motion. Summary judgment may only be granted if movant provides evidentiary proof in admissible form to demonstrate that there are no questions of fact (Winegrad v New York Univ. Med. Center, 64 NY2d 851; Wanger v Zeh, 45 Misc 2d 93, aff'd 26 AD2d 729). Once the movant has demonstrated a prima facie entitlement to summary judgment as a matter of law, the burden shifts to the opposing party to submit evidentiary proof in admissible form sufficient to create an issue of fact or demonstrate an acceptable excuse for his failure to submit such proof (Alvarez v Prospect Hosp., 68 NY2d 320). Mere conclusions, speculation or expressions of hope are insufficient to defeat the motion (Amatulli v Delhi Constr. Corp., 77 NY2d 525).

From the evidence presented to the Court, it is clear that a significant issue of fact exists in regard to whether or not a dangerous condition existed and if it was open and obvious. The only way to determine the outcome of this matter is to allow the parties to present their evidence at trial.

Based upon the foregoing, defendant’s motion to dismiss and for summary judgment is denied.

June 26, 2008
Hauppauge, New York

Judge of the Court of Claims

[1].The following papers have been read and considered on defendant’s motion: Notice of Motion for Summary Judgment dated January 15, 2008 and filed January 16, 2008; Affirmation in Support of Motion for Summary Judgment of Kimberly A. Kinirons, Esq. with annexed Exhibits A-H dated January 15, 2008 and filed January 16, 2008; Affirmation of Michelle F. Laskin, Esq. with annexed Exhibits A-B dated February 19, 2007 (sic) and filed February 27, 2008.