Practice point: An infant plaintiff cannot be said, as a matter of law, to have assumed the risk of being injured by the defective condition of a pothole on a public street when he was riding merely for fun, and using the bicycle only as a means of transportation.
Practitioners should note that when a defendant fails to establish its prima facie entitlement to judgment as a matter of law, defendant’s motion will be denied regardless of the sufficiency of plaintiff’s opposition papers.
Case: Caraballo v. City of Yonkers, NY Slip Op 06949 (2d Dept. 2008)
The opinion is here.
