Bedder v Windham Mtn. Partners, LLC

Bedder v Windham Mtn. Partners, LLC 2011 NY Slip Op 05861 Decided on July 7, 2011 Appellate Division, First Department Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. This opinion is uncorrected and subject to revision before publication in the Official Reports.

Decided on July 7, 2011
Andrias, J.P., Sweeny, Renwick, Freedman, Manzanet-Daniels, JJ.
5502 109187/07

[*1]Walter C. Bedder, Plaintiff-Appellant,

v

Windham Mountain Partners, LLC, et al., Defendants-Respondents.



 
Lurie, Ilchert, MacDonnell & Ryan LLP, New York (Dennis
A. Breen of counsel), for appellant.
Carol A. Schrager, New York, for respondents.

Order, Supreme Court, New York County (Paul Wooten, J.), entered November 1, 2010, which granted defendants' motion for summary judgment dismissing the complaint, unanimously affirmed, without costs.

Plaintiff seeks damages for injuries he suffered during a snowboarding run down defendants' mountain trail. By engaging in the recreational sport of snowboarding, plaintiff "consent[ed] to those commonly appreciated risks which are inherent in and arise out of the nature of the sport generally and flow from such participation" (Whitman v Zeidman, 16 AD3d 197, 197 [2005] [internal quotation marks and citation omitted]). Personal injury caused by hitting a stump on the side of the trail, while swerving to avoid another person using the trail, is one of the risks inherent in downhill snowboarding (General Obligations Law § 18-101; Farone v Hunter Mtn Ski Bowl, Inc., 51 AD3d 601 [2008], lv denied 11 NY3d 715 [2009]; see also Painter v Peek'N Peak Recreation, 2 AD3d 1289 [2003]). Plaintiff's expert affidavit was conclusory and therefore insufficient to raise an issue of fact whether defendants' alleged negligent construction and maintenance of the trail created additional risks not inherent in downhill snowboarding (see Owen v R.J.S. Safety Equip., 79 NY2d 967, 970 [1992]).

We have considered plaintiff's remaining argument and find it unavailing.

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

ENTERED: JULY 7, 2011

CLERK