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CHARNOVESKY v. CITY OF NEW YORK, BOARD OF EDUCATION

283 A.D.2d 385 (2001)

724 N.Y.S.2d 199

ROBERT CHARNOVESKY, Respondent, et al., Plaintiff, v. CITY OF NEW YORK, BOARD OF EDUCATION, Appellant.

Appellate Division of the Supreme Court of the State of New York, Second Department.

Decided May 7, 2001.

Ordered that the judgment is affirmed, with costs.

The Supreme Court properly declined to consider the defendant's contention that the plaintiff Robert Charnovesky (hereinafter the plaintiff) assumed the risk of tripping in a two-inch deep hole in the concrete surface of the defendant's schoolyard while jogging in preparation for a touch football game planned for the same location. The defendant failed to plead assumption of the risk as an affirmative defense, and...

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