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RONALD ELLIS, PLAINTIFF-RESPONDENT, v. THE CITY OF NEW YORK, ET AL., DEFENDANTS-APPELLANTS.

Plaintiff sustained injuries as a result of stepping into a hole while playing baseball on a field in defendant's park. The trial court correctly rejected defendant' s request to charge assumption of risk, the evidence being uncontroverted, that the hole was not, as defendant claims, "open and obvious" (citing, inter alia, Maddox v. City of New York, 66 N.Y.2d 270, 27 7), but concealed by grass (see, Morgan v. State of New York, 90 N.Y.2d 471, 485, 488-489; Swan v. City of New York, 272 A.D.2d 394; Torres v. City of New York, 271 A.D.2d 306). We find the award for future pain and suffering deviates materially from what is reasonable compensation under the circumstances to the extent indicated. We have considered and rejected defendants' other arguments.

THIS CONSTITUTES THE DECISION AND ORDER OF SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.

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ELLIS v. CITY OF NEW YORK
(Mar 6, 2001)