Zayat Stables, LLC v NYRA, Inc.
Annotate this CaseDecided on November 18, 2009
Supreme Court, Queens County
Zayat Stables, LLC, Plaintiff,
against
NYRA, Inc., Defendant.
26215/08
Appearance of counsel:
For Plaintiff:
Karen A. Murphy, Esq.
76 Phelps Road
Old Chatham, New York 12136
For Defendant:
Bee Ready Fishbein Hatter & Donovan
170 Old Country Road, Suite 200
Mineola, New York 11501
by: Joshua M. Jemal, Esq.
Howard G. Lane, J.
RELIEF SOUGHT
Defendant NYRA, INC. ("NYRA") moves for summary judgment pursuant to CPLR 3212
dismissing the complaint, and by separate motion for an order pursuant to CPLR 3042, 3124 and
3126 compelling the plaintiff Zayat Stables, LLC ("Zayat") to submit the thoroughbred colt race
horse "Phone Home" to physical examinations in New York and to provide responses to
outstanding discovery demands and an order pursuant to CPLR 3024, 3124 and 3126 precluding
plaintiff from offering proof. Both motions are joined in this decision for purposes of disposition.
BACKGROUND
On August 6, 2007, Phone Home, a thoroughbred race horse owned by Zayat suffered a career-ending injury while [*2]participating in the 5th race at Saratoga Springs Thoroughbred Racing Track which is owned and operated by defendant NYRA.[FN1] Plaintiff's horse was assigned to the start race gate with John Velazquez aboard as the jockey. According to plaintiff, the assistant starter straightened the horse's head so that the colt's head was pointed down the track which plaintiff claims is the custom and common signal to the head starter that the horse and jockey are ready for the start of the race. Plaintiff further claims that the head starter wrongly opened the start gate before Velazquez was "tied on", (i.e., feet in the stirrups and reins securely in hand) and ready causing the jockey to be dislodged, thrown and fall from the horse. The horse then took off into a gallop without a rider, and thereafter injured his right knee when the colt attempted to jump the outer rail of the race track.
Plaintiff commenced this action alleging that the colt's injury was the result of the negligent act of the "starting gate crew",[FN2] employed by NYRA, of causing the starting gate to open when the rider of plaintiff's horse was not ready for the start of the race. Furthermore, plaintiff claims that the "Assistant Starter" and "Head Starter" failed to follow proper protocols by not waiting until the rider of Phone Home was ready for the start of the race before opening the starting gate.
Pretrial discovery was had in which examinations before trial were taken of Sobhy Sombol, plaintiff's Racing Manager and Vice President. Defendant NYRA thereafter filed the instant motion for summary judgment. Essentially relying on the Court of Appeals holding in Turcotte v. Fell (68 NY2d 432 [1986]), defendant NYRA argues that the complaint must be dismissed because the undisputed record conclusively establishes that any hazardous conditions claimed by Zayat to have caused injury to Zayat's horse were obvious and apparent, which Zayat knew of or should have known of as an experienced professional thoroughbred [*3]race horse owner. Therefore, by participating in the thoroughbred horse racing activity leading to the accident with such knowledge, Zayat voluntarily assumed the risk of injuries from those dangers and implicitly gave its informed consent that NYRA owed it no duty of ordinary care with respect thereto, as a matter of law.
In support of its motion, defendant submitted, among other things, the verified complaint,
bill of particulars, and
the deposition of Sobhy Sombol. Sombol testified that he was employed by plaintiff
Zayat Stables, LLC as Racing Manager and Vice President since February 2005. His duties as
Vice President and Racing Manager include managing the entire racing program, buying horses,
developing horses for the race track and placing the horses in races that maximize the horses
value. In August 2007, plaintiff owned approximately two hundred fifty (250) horses. He has
been involved in the equine industry since the age of eight (8). He testified that between 2003
and 2005 he personally owned two race horses that he trained and raced in Egypt. He testified
that it is a common occurrence for a horse to lose its rider during a race and that since his
employment with Zayat he has observed horses lose their riders on many occasions, including
approximately five (5) times in the start gate and coming out of the start gate more than thirty
(30) times.
Prior to the accident, Zayat's trainers made complaints to him regarding the gate crew expertise and experience. However, notwithstanding his concerns about the safety of Zayat's horses participating in the August 2007 Meet at Saratoga Racetrack due to the performance of the starter gate crew, he did not withdraw a Zayat's horse from the Meet.
In opposition, the plaintiff submitted plaintiff's verified complaint, dated October 23, 2008,
the affidavit of jockey John Velazquez, sworn to November 20, 2007 and the out-of-state
affidavit of plaintiff's expert Clinton Pitts, sworn to May 26, 2009.
THE LAW RELATING TO SUMMARY JUDGMENT
The proponent of a motion for summary judgment carries the initial burden of production of evidence as well as the burden of persuasion (Alvarez v. Prospect Hospital, 68 NY2d 320 [1986]). Thus, the moving party must tender sufficient evidence to demonstrate as a matter of law the absence of a material issue of fact. Once that initial burden has been satisfied, the "burden of production" shifts to the opponent, who must now go forward [*4]and produce sufficient evidence in admissible form to establish the existence of triable issue of fact.
The court's function on a motion for summary judgment is issue finding rather than issue determination (Sillman v. Twentieth Century Fox Film Corp., 3 NY2d 395 [1957]). Since summary judgment is such a drastic remedy, it should not be granted where there is any doubt as to the existence of a triable issue (Rotuba Extruders v. Ceppos 46 NY2d 223 [1978]). Thus, when the existence of an issue of fact is even arguable or debatable, summary judgment should be denied (Stone v. Goodson, 8 NY2d 8 [1960]; Sillman v. Twentieth Century Fox Film Corp., 3 NY2d 395 [1957]). The role of the court is to determine if bona fide issues of fact exist, and not to resolve issues of credibility (Knepka v. Tallman 278 AD2d 811 [4th Dept 2000]; see also, Yaziciyan v. Blancato, 267 AD2d 152 [1st Dept 1999] ["The deponent's arguably inconsistent testimony elsewhere in his deposition merely presents a credibility issue properly left for the trier of fact."])
When the moving party has established entitlement to summary judgment as a matter of law, the opposing party must demonstrate, by admissible evidence, the existence of a factual issue requiring a trial of the action (see, LaCapria v. Bonazza, 153 AD2d 551 [2d Dept 1989]). The opponent of a motion for summary judgment, in order to avoid the granting of the motion, must ordinarily submit evidentiary proof in admissible form (see, CPLR 3212[b]).
DISCUSSION
It is fundamental that to recover in a negligence action a plaintiff must
establish that the defendant owed him a duty to use reasonable care and that the defendant
breached that duty (Turcotte v. Fell, 68 NY2d 432, 437 [1986]). However, "[w]hen
aperson voluntarily participates in certain sporting events or athletic activities, an action to
recover for injuries resulting from conduct or conditions that are inherent in the sport or activity
is barred by the doctrine of primary assumption of risk" (Cotty v. Town of Southampton, 64 AD3d 251 [2d Dept
2009]).
"Under the doctrine of primary assumption of risk, a person who
voluntarily participates in a sporting activity generally consents, by his or her participation, to
those injury-causing events, conditions, and risks which are inherent in the activity" (see,
Morgan v. State of New York, 90 NY2d 471, 484 [1997]; Turcotte v. Fell, 68 NY2d
432, 439 [1986]). Risks inherent in a [*5]sporting activity are
those which are known, apparent, natural, or reasonably foreseeable consequences of the
participation (see, Morgan v. State of New York, 90 NY2d at 484; Turcotte v.
Fell, 68 NY2d at 439). Because determining the existence and scope of a duty of care
requires "an examination of plaintiff's reasonable expectations of the care owed him by others"
(Turcotte v. Fell, 68 NY2d at 437), the plaintiff's consent does not merely furnish the
defendant with a defense; it eliminates the duty of care that would otherwise exist. Accordingly,
when 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 cannot be charged with negligence' (68
NY2d at 438, quoting Prosser and Keeton, Torts "68, at 480-481 [5th ed])." (Cotty v. Town of Southampton, 64
AD3d 251 [2d Dept 2009]).
"The policy underlying the doctrine of primary
assumption of risk is "to facilitate free and vigorous participation in athletic activities"
(Benitez v. New York City Bd. of Educ., 73 NY2d 650, 657 [1989]). Without the
doctrine, athletes may be reluctant to play aggressively, for fear of being sued by an opposing
player. As long as the defendant's conduct does not unreasonably increase the risks assumed by
the plaintiff, the defendant will be shielded by the doctrine of primary assumption of risk
(see, Morgan v. State of New York, 90 NY2d at 485; Benitez v. New York City Bd.
of Educ., 73 NY2d at 658; Muniz v. Warwick School Dist., 293 AD2d 724 [2002])."
(Cotty v. Town of Southampton, 64
AD3d 251 [2d Dept 2009]).
Awareness of the risk assumed is to be assessed
against the background of the skill and experience of the particular plaintiff (Morgan v. State,
supra ). In Turcotte v. Fell, the Court of Appeals placed professional
athletes[FN3] participating
in sporting events into the category of "primary" assumption of risk, which limited defendant's
duty to exercising due care to make the conditions as safe as they appear to be(68 NY2d at
438-439). Thus, relieving an owner or operator of a sports venue from liability for the inherent
risks of engaging in the sport is justified when a consenting participant is (1) aware of the risks,
2) has an appreciation of the nature of the risks, and (3) voluntarily assumes the risks
(Morgan v. State, 90 NY2d 471; [*6]Turcotte v. Fell,
supra ; see, Verro v. NYRA, 142 AD2d 396 [3d Dept 1989] [a professional
athlete who is injured while participating in the dangerous sport activity of horse racing is
presumed to have greater understanding of the dangers involved and is deemed to have
consented, by his participation to those injury-causing events which are known, apparent or
reasonably foreseeable consequences of the participation]).
"It is not
necessary to the application of assumption of risk that the injured plaintiff have foreseen the
exact manner in which his or her injury occurred, so long as he or she is aware of the potential
for injury of the mechanism from which the injury results" (Maddox v. New York, 66
NY2d 270, 278 [1985]). However, although "knowledge plays a role" "for purposes of
determining the extent of the threshold duty of care," the inherency of the risk "is the sine qua
non" (Morgan v. State, 90 NY2d 471 [1997]; see, Rosati v. Hunt Racing, Inc., 13 AD3d
1129
[4th Dept 2004]).
Participants do not assume the risk of reckless of intentional
conduct.
The fact that defendant was negligent is not dispositive in an action in which the
defendant asserts a defense of primary assumption of the risk. Participants will not be deemed to
have assumed the risks of reckless or intentional conduct or concealed or unreasonably increased
risks (Morgan v. State, 90 NY2d 471; see, Kleiner v. Commack Roller Rink, 201
AD2d 462 [2d Dept 1994] [ice skater may assume the risk of being hit by out-of-control skater,
but see, Reid v. Druckman, 309 AD2d 669 [1st Dept 2003] [ice skater may not have
assumed the risk of being bowled over by rink safety personnel acting
recklessly).
A participant in a sporting event does not assume the risk of
foreseeable harm arising from a breach by those responsible for conducting the activity of their
duty to provide reasonable supervision (Kramer v. Arbure, 309 AD2d 1208 [4th Dept
2003] [rink owners could be held liable to hockey player injured by another player's reckless or
intentional conduct, where among things there was evidence that during the game the refereeing
was "poor" or "terrible"]). However it should be noted that in Turcotte v. Fell, the court
held that plaintiff a professional jockey with years of experience in horse racing had assumed the
risk of injury arising from another jockey's violation of the rules of horse racing. The fact that
another participant's conduct violated the rules of the sport does not render such conduct
intentional or reckless so as to justify an exception to the assumption of risk doctrine.
[*7]
Participants
do not assume the risk of concealed or unreasonably increased risk
In
determining whether a defendant has violated a duty of care to a plaintiff engaged in a sporting
activity, the applicable standard should include whether the conditions caused by defendant's
negligence are unique and created a dangerous condition[FN4] over and above the usual dangers that are
inherent in the sport (Morgan v. State, 90 NY2d 471 [1997]; Owen v. R.J.S. Safety
Equipment, Inc., 79 NY2d 967 [1992]. Thus, there must be a showing of some negligent act
or inaction, referenced to the applicable duty of care owed to the participant by the defendant,
which may be said to constitute a substantial cause of the events which produced the injury
(Morgan v. State, supra ).
Accordingly, a participant will not be
deemed to have assumed the risk where the action is based on negligence which created
additional risks not inherent in the sport (Reid v. Druckman, 309 AD2d 669 [1st Dept
2003] [ice skater did not assume risk of being bowled over by reckless rink safety personnel]; Huneau v. Maple Ski Ridge, Inc., 17
AD3d 848 [3d Dept 2005]
[issue of fact as to whether actions of
attendants at snow tubing facility unreasonably increased the risk of injury]; Rosati v. Hunt Racing, Inc., 13 AD3d
1129 [4th Dept 2004] [issue of fact whether improperly trained or negligent flagman is a
risk inherent in sport of motorcross racing] (Minuto v. State, NYLJ, Sept. 25, 2009, at
32, col 3 [Court of Claims] [granting summary judgment to 15 year old luge sled rider who was
injured when her sled struck a worker standing in the track who was employed by defendant to
perform track maintenance between sled runs, and finding that "a maintenance worker standing
in the middle of the track is not an inherent risk of the sport of luge and constitutes a unique and
dangerous condition beyond the usual dangers inherent in the sport]).
Defendant has established a prima facie ground for summary
judgment.
Defendant has presented prima facie evidence
showing that plaintiff is a highly skilled and experienced professional owner of thoroughbred
race horses with many years of knowledge of the [*8]horse
racing business who voluntarily participated in a professional horse racing event in which
plaintiff's horse was injured in a race at a race track which defendant owned and operated.
Defendant submitted proof in admissible form showing that (1) horse racing is an inherently
dangerous and risky sporting or entertainment activity; (2) plaintiff voluntarily participated in
horse racing and routinely placed and raced his horses, including Phone Home, the horse that is
the subject of this action, in professional racing activities; (3) plaintiff's owner had a substantial
background and numerous years of professional experience in horse racing prior to the accident
and previously participated in horse races at Saratoga Springs Thoroughbred Racing Track and
various other tracks; (4) that prior to the start of the race plaintiff was aware that deviation from
start gate protocol, or custom practice and procedure may occur due to acts or omissions of start
gate crews during a professional thoroughbred horse race.[FN5] The record shows that Zayat was aware of the
risks of injury in the sport of professional horse racing in general, and in particular the injury
causing events and conditions that may occur at a start gate at the commencement of horse race,
and as a professional is presumed to have a greater understanding of the dangers
involved.
Defendant has made a prima facie showing that by plaintiff
participating in the sporting/entertainment activity of horse racing, the primary assumption of the
risk doctrine annunciated in Turcotte relieves defendant from liability from any injury to
plaintiff's property (i.e., the colt Phone Home) that may have been caused by the negligent act or
omission at the start gate when the starting gate crew, employed by defendant NYRA to
officiate, supervise and manage the race, allegedly caused the starting gate to open when the
jockey was not ready for the start of the race or by the negligent act of the "Assistant Starter" and
"Head Starter" in failing to follow proper protocols by not waiting until the jockey aboard Phone
Home was "tied on" and ready for the start of the race before opening the start
gate.
Plaintiff does not raise any triable issue of fact.[*9]
In opposition, plaintiff submits the affidavit of
jockey, John Velazquez, the out-of-state affidavit of its expert Clinton Pitts and plaintiff's
verified complaint.
Plaintiff argues that defendant has failed to present
proof in admissible form which would eliminate material issues of fact concerning plaintiff's
theory of liability, i.e. that NYRA's gate crew negligently started the race before Phone Home's
jockey was "tied on".
Plaintiff further argues that it may have assumed the
risk that its jockey could be thrown by a frightened horse, but did not assume the heightened risk
created by alleged negligent conduct of defendant's employees in opening the start gate before
plaintiff's jockey was ready and set to go.
Additionally, plaintiff argues
that the mechanism that caused plaintiff's injury was the negligent operation of the start of the
race by an incompetent, untrained and/or inexperienced starting gate crew. Plaintiff asserts that
defendant submits no proof to establish that plaintiff was aware or assumed the risk of injury of
the start of the race by an incompetent, untrained and/or inexperienced starting gate
crew.
Plaintiff's submission is incompetent.
When the
moving party has established entitlement to summary judgment as a matter of law, the opposing
party must demonstrate, by admissible evidence, the existence of a factual issue requiring a trial
of the action (see, LaCapria v. Bonazza, 153 AD2d 551 [2d Dept 1989]). The opponent
of a motion for summary judgment, in order to avoid the granting of the motion, must ordinarily
submit evidentiary proof in admissible form (see, CPLR
3212[b]).
In plaintiff's expert's affidavit, Clinton Pitts states that in
reaching his opinion, he reviewed a videotape of the August 6, 2007, 5th race at Saratoga Race
Course and "the contemporary press accounts of the August 2007 Race Meet at Saratoga".
(¶5 Affidavit of Clinton Pitts). The videotape reviewed by Mr.
Pitts was not submitted by plaintiff and is not part of the record before the court. The
"contemporary news accounts" (Exhibit B Affidavit of Clinton Pitts) is clearly hearsay and
inadmissible (Young v. Fleary, 226 AD2d 454, 455 [2d Dept 1996] [newspaper articles
submitted on summary judgment motion constitute inadmissible hearsay]). "[It] is settled and
unquestioned law that opinion evidence must be based on facts in the record or personally
known to the witness". (Hambsch v. [*10]NYCTA, 63
NY2d 723, 725, citing Cassano v. Hagstrom, 5 NY2d 643, 646, rearg denied 6
NY2d 882; DeTommaso v. M.J. Fitzgerald Construction Corp., 138 AD2d 341 [2d Dept
1988]; O'Shea v. Sarro, 106 AD2d 435 [2d Dept 1984]). As the opinion of the plaintiff's
expert was based on hearsay and evidence that is not in the record, it is inadmissible and cannot
be considered by the court (Schwartz v.
Nevatel Communication Corp., 8 AD3d 469 [2d Dept 2004]) [inadmissible hearsay is
insufficient to raise any triable issues of fact to defeat summary judgment]).
Since Mr. Pitts' conclusions improperly rested on proofs that are not
before this court, they are insufficient to raise a material triable factual issue (see, Constantinou v. Surinder, 8 AD3d
323 [2d Dept 2004]; Claude v. Clements, 301 AD2d 554 [2d Dept 2003];
Dominguez-Gionta v. Smith, 306 AD2d 432 [2d Dept 2003]; Codrington v. Ahmad, 40 AD3d
799 [2d Dept 2007]).As plaintiff's submissions are not in admissible form or probative
evidence, they may not be considered by this court as plaintiff's opposition to the summary
judgment motion.
Notwithstanding, even considering the affidavit of
plaintiff's expert, in which he asserts based on industry custom, training and common
understanding, the assistant starter should not have straightened the horse's head so that the
horse's head was pointed down the track, which is the custom and common signal to the head
starter that the horse and jockey are ready for the start of the race, when the jockey was not tied
on and ready, the Court finds that any such conditions created by defendant's employees alleged
negligence were neither unique nor created a dangerous condition over and above usual dangers
that were inherent in the sport of horse
racing.
Inasmuch as a participant in a sporting event
does not assume risks that are unreasonably increased, a jury question is presented as to whether
the risk of injury inherent in the sport activity was increased by the acts or omissions of the
defendant (Mauner v. Feinstein, 213 AD2d 383 [2d Dept 1995]; Henig v. Hofstra
University, 160 AD2d 761 [2d Dept 1990] [where plaintiff was injured while playing
football by falling into a hole on the field, a jury question was presented as to whether the hole
was "typical of the terrain upon which the game of football is normally played" or whether the
hole was an unreasonable, unnecessary and unforeseen addition to the risks inherent in the
sport]).
However, as in this case, before reaching the question as to
whether the risk of injury inherent in the sport was increased, [*11]the threshold legal determination of the scope of defendant's duty,
and whether the defendant activity created a condition or risk of injury of the kind that is
inherent in a sport, is a question for the court. Hence, although, a court may consider expert
opinion regarding the risk customarily considered inherent or associated with the sport activity,
the expert opinion is not controlling on the ultimate legal question of the duty. Once the court
has resolved the issue of what are customarily inherent risks, the question of whether the
defendant increased those risks may be a question for the jury.
Whether
certain injury causing events, conditions and risk are inherent in the activities of horse riding or
racing, and the scope of the duty of the owner or sponsor of a horse racing or horse riding related
activity have been considered by several courts. In Tilson v. Russo, 30 AD3d 856 (3d Dept 2006) the court held that
even if the owner failed to comply with industry standards, any conditions created by owner's
alleged negligence were neither unique nor created a dangerous condition over and above usual
dangers that were inherent in sport of horseback riding, including the sudden and unintended
action that the horse would bite the rider. In Norkus v. Scolaro, 267 AD2d 666 (3d Dept
1999) the court held that an inherent risk in sporting events involving horses is injury due to the
sudden and unintended actions of the animal. In Eslin v. County of Suffolk, 18 AD3d 698 (2d Dept 2005) the
Appellate Division, Second Department held that being thrown from horse, or horse acting in an
unintended manner were dangers inherent in the sport of horseback riding and a horse back rider
assumed risk of injury when she fell from a horse after the horse took off into gallop and rider's
foot dislodged from stirrup.
In this case, plaintiff claims the injury causing
condition or risks created by defendant's negligence was the opening of the start gate before the
jockey was ready and "tied on" which caused the colt to take off, the jockey to be dislodged,
thrown and fall from the horse. Although, defendant's negligent conduct may have caused the
jockey to fall from the horse at the start gate, it was the horse acting in an sudden and unintended
manner when the colt took off into a gallop without a rider and thereafter, unsuccessfully
attempted to jump the outer rail of the racetrack that ultimately caused the colt to sustain
injury.
Being thrown from a horse in a horse race, a horse taking off
riderless and a horse acting in an unintended manner are all[*12]
dangers inherent in the professional sport of
thoroughbred horse racing.[FN6] Any injury-causing condition or risks created
by
defendant's negligence was neither unique nor created a dangerous condition over
and above the usual dangers that are inherent in the sport of horse racing.
Furthermore, although the plaintiff claims the defendant's start crew failed to
start the race properly, in fact it is undisputed that the injuries to plaintiff's horse, which occurred
when the riderless horse attempted to jump over a fence, arose from dangers or conditions
inherent in horse racing activity, precluding any property damage action against the
owner/operator of the race track, even though the owner of the horse claimed that the injuries
were caused by the "starter's" failure to properly start the race only after the jockey was ready,
but without due consideration of the propensity of a horse to behave in ways that are unintended
and that may result in injury.
Additionally, plaintiff's claim that
defendant's employees failed to follow proper protocols by not waiting until the jockey was
ready for the start of the race before opening the starting gate is insufficient to raise a triable
issue of fact. In order to constitute conduct outside the doctrine of primary assumption of the
risk, the conduct must be a flagrant infraction unrelated to the normal method of playing the
game and done without a competitive purpose (Turcotte v. Fell, supra ; Barton by Barton v.
Hapeman, supra ). In this case plaintiff makes no claim that defendant's conduct was
flagrant, reckless, done without a competitive purpose or intentional, and only makes claims of
ordinary negligence.[*13]
Furthermore,
while it is true that a plaintiff who consents to voluntarily participate in the inherently dangerous
sport of thoroughbred horse racing does not waive all rules, infractions and violations of
protocol, nonetheless, a professional participant in a sporting activity is deemed to fully
appreciate and understand the usual incidents of competition resulting from the errors in human
judgment of officials of the sport, such as referees, stewards, race track employees and
personnel, umpires, judges, etc., who are otherwise charged with the responsibility of officiating,
controlling, supervising and managing the sporting event, and accepts them.[FN7] Such conduct and actions,
including errors in human judgment, by such officials is within the known apparent and
foreseeable dangers of the sport, or commonly appreciated risks that "flow from participation."
(Turcotte v. Fell, 68 NY2d 432; Joseph v. NYRA, 28 AD3d 105 [2d
Dept
2006]).
CONCLUSION
Accordingly,
defendant's motion for summary judgment is granted and the complaint is dismissed.
As the complaint is dismissed,
defendant's motion for an order pursuant to CPLR 3042, 3124 and 3126 compelling the plaintiff
Zayat Stables, LLC to submit the thoroughbred colt race horse "Phone Home" to physical
examinations in New York and provide responses to outstanding discovery demands and an
order pursuant to CPLR 3024, 3124 and 3126 precluding plaintiff from offering proofis hereby
denied as moot.
This constitutes the decision and order of this
court.
Dated: November 18, 2009
Howard G.
Lane, J.S.C.Footnotes
Footnote 1: For purposes of defendant's
motion, the court shall view the evidence in the light most favorable to plaintiff (see,
Boston v. Dunham, 274 AD2d 708 [3d Dept 2000]).
Footnote 2:
Although not
specifically alleged in the verified complaint, apparently plaintiff is suing NYRA as the owner
and operator of the sports venue and in its capacity as the employer of the starting gate crew
employees who plaintiff claims were negligent. NYRA, allegedly the employer of the starting
gate crew, is being sued under the doctrine of respondent superior.
Footnote 3: Some sporting commentators do
consider a race horse a professional athlete. Indeed, in 1973, over a quarter of a century ago,
Sports Illustrated named the thoroughbred race horse Secretariate its "Athlete of the Year" for
becoming the first thoroughbred since Citation in 1948 to win America's Triple Crown. (see,
Brokopp, Are Race Horses Athletes? You Bet They Are!, June 8, 2005).
Footnote 4: Plaintiff claims that the unique
and dangerous condition created by defendant's negligent conduct, was plaintiff's jockey
dislodgment, being thrown and fall from the horse, resulting in the horse taking off into a gallop
without a rider and thereafter, attempting unsuccessfully to jump the outer rail of the race track.
Footnote 5: Plaintiff admits in its verified
complaint that "there were seven separate negligent gate incidents in the first 20 days of the
36-day Saratoga 2007 Meet. In fact, in the week preceding the August 6th race there were three
incidents at the gate one of which also resulted in the horse being declared a "non-starter."
¶17 of the Verified Complaint (see, Kwiecinski v. Chung Hwang, 2009 NY Slip
Op 06630 [3d Dept 2009] [Admissions of fact in pleadings are considered admissible]).
Footnote 6: The court notes that the
occurrence of mishaps at start gate are of known and reasonably foreseeable in the sport of horse
racing to such an extent that specific rules have been promulgated with the apparent intent to
afford wagers refunds of their bets when there has been a starter gate problem that as a result the
"horses" chances were compromised leaving the starting gate."
9(E) NYCRR § 4009.21 provides in pertinent
part:
When a horse starts. Every horse shall be considered a starter when
the stall gates open the signal of the starter, unless the stewards declare a horse or horses
non-starters because, in their opinion, horses' chances were compromised leaving the starting
gate. If so, all bets on the non-starters will be refunded unless the horse
wins.
Footnote 7: After the umpires botched
several calls in the league championship series in October 2009, including three glaring mistakes
in the championship game on October 20, 2009, professional Major League baseball player
Derek Jeter, is quoted as saying "People are human. They make mistakes sometimes. Umpires
are trying their best. Sometimes, you get calls. Sometimes, you don't." (Curry, Umpires Are
Caught Off Base by Bad Calls, New York Times, Oct. 21, 2009).
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