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MARCANO v. CITY OF NEW YORK

296 A.D.2d 43 (2002)

743 N.Y.S.2d 456

CARLOS MARCANO, Appellant, v. CITY OF NEW YORK, et al., Respondents.

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

June 11, 2002.

Attorney(s) appearing for the Case

David L. Kremen of counsel (Oshman, Helfenstein, Bernstein, Mirisola & Schwartz, LLP, attorneys), for appellant.

Cheryl Payer of counsel (Stephen J. McGrath on the brief; Michael D. Hess, Corporation Counsel of New York City, attorney), for respondents.

MAZZARELLI, J.P., and ROSENBERGER, J., concur with BUCKLEY, J.; ANDRIAS and FRIEDMAN, JJ., dissent in a separate opinion by FRIEDMAN, J.

OPINION OF THE COURT

BUCKLEY, J.

The issue here is, are there questions of fact concerning whether plaintiff assumed the risk of his injury? We answer in the affirmative, reinstate the complaint, and remand for further proceedings.

I.

This is an action for damages for serious personal injuries sustained by plaintiff Carlos Marcano while he was being detained on $2,500 bail at Rikers Island. There are no charges presently pending against...

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