Marcano v. City of New York

99 N.Y.2d 548 (2002)

784 N.E.2d 73

754 N.Y.S.2d 200

CARLOS MARCANO, Respondent, v. CITY OF NEW YORK et al., Appellants.

Court of Appeals of the State of New York.

Decided December 17, 2002.

*549 Michael A. Cardozo, Corporation Counsel, New York City (Cheryl Payer of counsel), for appellants.

Oshman, Helfenstein, Bernstein, Mirisola & Schwartz, LLP, New York City (David L. Kremen of counsel), for respondent.

Concur: Chief Judge KAYE and Judges SMITH, LEVINE, CIPARICK, WESLEY, ROSENBLATT and GRAFFEO.

On review of submissions pursuant to section 500.4 of the Rules of the Court of Appeals (22 NYCRR 500.4), order reversed, with costs, defendants' motion for summary judgment granted and complaint dismissed. Certified question answered in the negative. Plaintiff assumed the risk of injury when he swung on, and subsequently fell off, an exercise apparatus constructed over a concrete floor (see, Turcotte v Fell, 68 NY2d 432, 438-439; see also, Morgan v State of New York, 90 NY2d 471, 488).