Opinion
2017–10518 Index No. 6201/16
10-07-2020
Spiros KANNAVOS, appellant, v. YUNG–SAM SKI, LTD., etc., respondent.
Pollack Pollack Isaac & DeCicco, LLP, New York, N.Y. (Brian J. Isaac and Jillian Rosen of counsel), for appellant. Cheroutes Zweig, P.C., Hamburg, N.Y. (Steven M. Zweig of counsel), for respondent.
Pollack Pollack Isaac & DeCicco, LLP, New York, N.Y. (Brian J. Isaac and Jillian Rosen of counsel), for appellant.
Cheroutes Zweig, P.C., Hamburg, N.Y. (Steven M. Zweig of counsel), for respondent.
RUTH C. BALKIN, J.P., CHERYL E. CHAMBERS, SHERI S. ROMAN, ROBERT J. MILLER, JJ.
DECISION & ORDER
In an action to recover damages for personal injuries, the plaintiff appeals from an order of the Supreme Court, Orange County (Catherine M. Bartlett, J.), dated September 28, 2017. The order granted the defendant's motion for summary judgment dismissing the complaint.
ORDERED that the order is affirmed, with costs.
On February 17, 2016, the plaintiff, an advanced intermediate snowboarder, was holding his snowboard when he allegedly slipped and fell on ice after taking one or two steps off the snow into the gravel area at the base of a mountain. Prior to his accident, the plaintiff had completed two or three snowboarding runs.
The plaintiff commenced the instant action to recover damages for personal injuries against the defendant, the owner of Thunder Ridge Ski Area, where the plaintiff allegedly fell. After discovery, the defendant moved for summary judgment dismissing the complaint, contending that the plaintiff assumed the risk of injury from slipping on ice. The plaintiff opposed the motion, contending, inter alia, that he was not participating in a sporting event or recreational activity at the time he fell. The Supreme Court granted the defendant's motion. The plaintiff appeals, and we affirm.
Under the doctrine of primary assumption of risk, a voluntary participant in a sporting or recreational activity "consents to those commonly appreciated risks [that] are inherent in and arise out of the nature of the sport generally and flow from such participation" ( Morgan v. State of New York, 90 N.Y.2d 471, 484, 662 N.Y.S.2d 421, 685 N.E.2d 202 ; see Custodi v. Town of Amherst, 20 N.Y.3d 83, 88, 957 N.Y.S.2d 268, 980 N.E.2d 933 ; Weinberger v. Solomon Schechter Sch. of Westchester, 102 A.D.3d 675, 677, 961 N.Y.S.2d 178 ). "As a result, participants may be held to have consented to those injury-prone risks that are known, apparent or reasonably foreseeable" ( Custodi v. Town of Amherst, 20 N.Y.3d at 88, 957 N.Y.S.2d 268, 980 N.E.2d 933 [internal quotation marks omitted] ). "[W]hen a plaintiff assumes the risk of participating in a sporting event, the defendant is relieved of legal duty to the plaintiff; and being under no duty, he [or she] cannot be charged with negligence" ( Cotty v. Town of Southampton, 64 A.D.3d 251, 254, 880 N.Y.S.2d 656 [internal quotation marks omitted]; see Turcotte v. Fell, 68 N.Y.2d 432, 438, 510 N.Y.S.2d 49, 502 N.E.2d 964 ).
Here, the defendant established its prima facie entitlement to judgment as a matter of law on the basis of assumption of risk (see Valverde v. Great Expectations, LLC, 131 A.D.3d 425, 427, 15 N.Y.S.3d 329 ; Litz v. Clinton Cent. Sch. Dist., 126 A.D.3d 1306, 1308, 5 N.Y.S.3d 636 ; Newcomb v. Guptill Holding Corp., 31 A.D.3d 875, 876, 818 N.Y.S.2d 655 ; Flowers v. Hunter Mtn. Bowl, Inc., 303 A.D.2d 363, 363, 755 N.Y.S.2d 658 ).
The accident involved a sporting or recreational activity that "occurred in a designated athletic or recreational venue" ( Custodi v. Town of Amherst, 20 N.Y.3d at 88, 957 N.Y.S.2d 268, 980 N.E.2d 933 ; Valverde v. Great Expectations, LLC, 131 A.D.3d at 425, 15 N.Y.S.3d 329 [internal quotation marks omitted] ). Further, contrary to the plaintiff's contentions, we conclude that he was still "involved" or "participating" in the sport of snowboarding at the time of his alleged injury ( Litz v. Clinton Cent. Sch. Dist., 126 A.D.3d at 1308, 5 N.Y.S.3d 636 [internal quotation marks omitted]; see Flowers v. Hunter Mtn. Bowl, Inc., 303 A.D.2d at 363, 755 N.Y.S.2d 658 ; cf. Hawkes v. Catatonk Golf Club Inc., 288 A.D.2d 528, 529, 732 N.Y.S.2d 132 ). At his deposition, the plaintiff testified that at the time of the accident, he was taking a "break" from snowboarding. He testified that he had stepped off the snow and was holding his snowboard on the way to rack it when he slipped on "black ice." He further testified that storing a snowboard in the racks at the base of the mountain was part and parcel of the activity of snowboarding. "[I]t would be inconsistent with the purpose of the assumption of the risk doctrine to isolate the moment of injury and ignore the context of the accident" ( Litz v. Clinton Cent. Sch. Dist., 126 A.D.3d at 1308, 5 N.Y.S.3d 636 ).
In opposition, the plaintiff failed to raise a triable issue of fact as to the existence of a dangerous condition over and above the usual dangers that are inherent in the sport of snowboarding (see Bukowski v. Clarkson Univ., 19 N.Y.3d 353, 357, 948 N.Y.S.2d 568, 971 N.E.2d 849 ; Morgan v. State of New York, 90 N.Y.2d at 485, 662 N.Y.S.2d 421, 685 N.E.2d 202 ).
The plaintiff's remaining contention is without merit.
Accordingly, we agree with the Supreme Court's determination granting the defendant's motion for summary judgment dismissing the complaint.
BALKIN, J.P., CHAMBERS, ROMAN and MILLER, JJ., concur.