Roberts v Einsidler Mgt., Inc.
2012 NY Slip Op 30995(U)
April 4, 2012
Supreme Court, Suffolk County
Docket Number: 08-45713
Judge: Denise F. Molia
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[* 1]
Woo SHORT FORM ORDER
COPY
INDEX No.
CALNo.
08-45713
1O-020040T
SUPREME COURT - STATE OF NEW YORK
IAS. PART 39 - SUFFOLK COUNTY
PRESENT:
Hon.
DENISE F. MOLIA
Justice of the Supreme Court
MOTION DATE 2-17-11
ADJ. DATE
6-2-11
Mot. Seq. #001 - MD
---------------------------------------------------------------)(
CHARLES ROBERTS, IV, an infant under the
age of 14 years by his parent and natural
guardian, CHARLES ROBERTS, Ill, and
CHARLES ROBERTS Ill, individually,
Plaintiffs,
- against -
BUTTAFUOCO & ASSOCIATES, PLLC
Attorney for Plaintiffs
144 Woodbury Road
Woodbury, New York 11797
MARGARET G. KLEIN & ASSOC.
Attorney for Defendant
200 Madison A venue
New York, New York 10016
EINSIDLER MANAGEMENT, INC.,
Defendant.
--------------------------------------------------------------X
Upon the following papers numbered 1 to ~
read on this motion for summary judgment ; Notice of Motion! Order
to Show Cause and supporting papers (00 I) 1-10 ; Notice of Cross Motion and supporting papers _;
Answering Affidavits
and supporting papers
11-14
; Replying Affidavits and supporting papers 15-16 ; Other _;
(1l11d IlttCI healiltg eotmsel
ill $UPpOIt and <"Jpp<"Jscd the lIloti<"Jn) it is,
to
ORDERED that motion (001) by the defendant, Einsidler Management Inc., pursuant to CPLR
3212 for an order bTfantingsummary judgment dismissing the complaint in the action is denied.
The plaintiffs seek damages personally and derivatively for injuries sustained by the infant
plaintiff on August 8, 2008, when he was riding his bicycle on the premises, including the sidewalk area,
at the defendants' property located at North Isle Village, Coram, New York. It is claimed that the
defendant caused and permitted an allegedly dangerous and defective condition of the sidewalk to exist,
in that the sidewalk was raised and uneven, causing the infant plaintiff to fall from his bicycle and
sustain injury.
Einsidler Management Inc. (Einsidler) seeks summary judgment dismissing the complaint on the
bases that the action cannot be maintained pursuant to General Obligations Law §9-103; the plaintiff
assumed the risk; the condition of the sidewalk was open and obvious and was not inherently dangerous;
and the defendant did not create the condition or have exclusive control over the operation of the
premises, and therefore cannot be held liable for nonfeasance.
[* 2]
Robc11Sv Einsidler Management Inc.
Index No. 08-45713
Page NO.2
The proponent of a summary judgment motion must make a prima facie showing of entitlement
to Judgment as a matter of law, tendering sufficient evidence to eliminate any material issues of fact
fj-om the cusc. To grant summary judgment it must clearly appear that no material and triable issue of
fact ISpresented (Sillman v Twentieth Century-Fox Film Corporation, 3 NY2d 395, 165 NYS2d 498
[1957]). The movant has the initial burden of proving entit1cment to summary judgment (Willegradll
N. Y.U. Medical Ceuter, 64 NY2d 851, 487 NYS2d 3 [6 [1985]). Failure to make such a showing
requires denial of the motion, regardless of the sufficiency of the opposing papers (Willegrad v N. y. U.
Metiic((l Center, supra). Once such proof has been offered, the burden then shifts to the opposing party,
who, in order to defeat the motion for summary judgment, must proffer evidence in admissible
foml .. and must "show facts sufficient to require a trial of any issue of fact" (CPLR 3212[b];
Zuckerman )' City of New York, 49 NY2d 557, 427 NYS2d 595 [1980]). The opposing party must
assemble, lay bare and reveal his proof in order to establIsh that the matters set forth in his pleadings are
real and t:apabJe of being established (Ca~-rrov Liberty Bus Co., 79 AD2d 10l4, 435 NYS2d 340
[1981]).
In SUPPOIt of this application, Einsidler has submitted, inler alia, an attorney's affinnation; copies
ufthe summons and complaint, answer, and the plaintiffs' verified bill of particulars and supplemental
bill of particulars; unsigned copies of the transcripts of the examinations before trial of Charles Roberts,
IV and Charles Roberts, m, each dated Apri126, 2010; a signed copy of the transcript of the examination
before trial of Richard Shyman on behalf of Einsidler Management, dated April 26, 20 IO. The unsigned
copies of the deposition transcripts are not in admissible fonn as required by CPLR 3212 (see, Martinez
v 123-16 Liberty Ave. Realty Corp., 47 AD3d 901, 850 NYS2d 201 [2"" Dept 2008J; McDonald v
Mall.', 38 AD3d 727, 832 NYS2d 291 [2"" Dept 2007]; Pilla v Flik Iml. Corp., 25 AD3d 772, 808
NYS2d 752 [2nd Dept 2006]), however, they arc accompanied by proof of mailing to the plaintiffs
pursuant to CPLR 3116, and the plaintiffs have not denied having received the transcripts nor do they
assert that changes were madc. Therefore, they are considered on this motion. In opposing this motion,
the plaintiffs have submitted an attorney's affi.rmation; the affidavit of Charles Robert, IV; and
photographs.
The adduced testimony of Charles Roberts, IV cstablishes that at the time oCthe accident, he
lived at North Isle Village, Coram, New York, which he described as an apartment complex. He was
ridmg his bicycle to VIsit four friends who also lived al the complex about two to three minutes from
him. Upon meeting up with his friends, they hung outside for a little while. It hud been drizzling, but
stopped. and the ground was wet. He was still on his bicyele, when he decided to ride around the
courtyard slowly and make a U-turn. He described the sidewalk area where he fell as having one "plate"
or flag that was slanted upward. He had seen that raised area before. As he went to make the U-tum. he
forgot thc raised flag was there. His bike hit the raised flag and his rear tire slipped on the wet sidewalk.
There was no dirt or loose stones on the Sidewalk. The mother of two of the boys WDS outSIde with them
\vhen the (Jccident occurred, but he did not think she saw the accident.
Charles Roberts m testified that he leamed of his son's accident when his wife called him. He
thereafter spoke to his son who told him that he was riding his bicycle, making a U-tum, not very fast,
and rode onto an uneven pal1 of the sidewalk. He described the sidewalk as having two flags there were
angled up from each other, located next to the Boulder complex, which is where his son said he fell. He
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Robel1s v Einsidler Management Inc.
Index No. 08-45713
Page No.3
further testified that the bicycle was purchased new for his son's pnor birthday. The tires had good
treads on them, the brakes were located on the handles, and the bike was in good working condition.
IZichard Shyman testified to the effect that he is the property manager for Einsldlcr Management
and prevIously managed residential properties which he owned. North Isle Village was an Einsidlcr
property which he managed since June 1, 2008 He described North Isle Village as having been
constructed approximately forty years ago, and consists of769 co-op garden apartments on 70 acres. He
oversees runnmg of the complex, negotiating contracts, performing safety inspections, and holds weekly
staff meetings to ascertain any situation that is not noticed during an inspection. He supervises
ma111tenal1Ce
which is pcrfonned by vendors brought to the complex to perform services, and statcd that
North Isles employs two full-time maintenance men whom hc also supervises. Shyman stated that when
he first started his job, he walked the sidewalks and grounds. He walks and drives around the property
on a golf cart and mamtains a log m which he makes entries concerning any findings upon inspection.
He did not notice any raised side\.valk flags on the several driveways located by the Boulder buildmg in
the vicinity of the accident. Ifhe had noticed a problem, he would have contacted the board of directors
for the co-op. He was una\.vare of any complaints about any of the sidewalks by the driveways by the
Boulder building. If there were complaints, they would be maintained on site at the management office.
He reviewed the complaints and did not find any complaints about uneven sidewalk Hags on either the
second of third driveway located by the Boulder building. Shyman testified that sidewalks are the
responsibility of the co-op. He did not know if the sidewalks were replaced after they were initially
constructed. He stated that bicycle riding was pennitted at North Isle Village by the residents, although
other sporting activities are restricted pursuant to the applicable homeowner rules. He stated he did not
know where the accident happened.
General Obligations Law OOL §9-1 03
The defendant management company asserts that this aetion is barred by GOL §9-1 03 and that it
cannot be held liable for the alleged condition of the sidewalk.
GOL §9-1 03 provides that there is "[no] duty to keep premises safe for certain uses;
responSibility for acts of such users." GaL §9-103 (l) (a) provides, "an owner, lessee or occupant of
premises, whether or not posted as provided in section 11-2111 of the envlfonmenta! conservation law,
owes no duty to keep the premises safe for entry or use by others for hunting, fishing, organized gleaning
as defined in section seventy-one-y of the agriculture and markets law, canoeing, boating, trappll1g,
hikmg, cross-county skiing, tobogganing, sledding, speleological activities, horseback riding, bicycle
riding, hand gliding, motorized vehicle operation for recreational purposes, snowmobile operation, ..., to
glve warning of any hazardous condition or use of or structure or actiVIty on such premises to persons
entering for such purposes
GOl ~9-1 (l) (b) provides that an owner, Jessee, or occupant of the premises who gives
03
permission to another to pursue any such actl vities upon such premises does not thereby (1) extend any
assurance that the premises arc saf"cf(x such purpose, or (2) constitute the person to whom pen11ission 1S
granted an lllvitec to whom of duty of care is owed, or (3) assume responsibility for or incur liability for
any ll1jury to perSall or property caused by allY act ofpersolls to whom the pennission is granted. Gal
[* 4]
Roberts v Einsidler Management Inc.
[ndex No. 08-45713
Page No.4
§9- 103 (2) does not limit the liability which \vould otherwise exist (a) for willful or mahcious
failure to guard, or to warn against, a dangerous condition, use, structure or activ1ty; ... (c) for injury
caused, by acts of persons to whom penmssion to purse any of the activities enumerated in this sectIOI1
was granted, to other persons to whom the person granting pennission, or the owner, lessee or occupant
of the premises, owed a duty to keep the premises safe or to wam of danger. Section 3 of GOL §9-l 03
further provides that "Nothing In this section creates a duty of care or ground ofIiablhty for injury to
person or propeI1y."
GOL §9-103, also known as the "recreational use statute," provides landowners with immunity
from liability for ordinary negligence, if a person is injured while engaged in the listed recreation activity
on the landowner's property. The statute seems counter-intUltive, as it abrogates the traditional
obligatlOn of property owners to keep propeliy reasonably safe for persons whose presence is
foreseeable. The overall purpose of GOL §9-103 recogmzes the value and imp011ancc to New Yorkers
ofpursll1g recreational activities, so that a statute immunizing landowners from liability arising from
recreational activities wdl result in more properties being made available for such uses (Morales v
Coram Materials CO/p., 51 AD3d 86, 853 NYS2d 611 [2d Dept 2008]). To meet its burden, a party
asserting a defense under GOL §9-1 03 is required to establish the two expressed components of GOL
§9-103, namely, its ownership of the property and the plaintiffs engagement in a specified recreational
activity. A party seeking summary judgment must also establish in its moving papers the "suitability" of
the property for recreational use, even though suitability is not specifically identified as an clement in the
language ofthc statute (activities will result in more properties bcmg made available for such uses)
(Morales v Coram Materials Corp., supra).
In the instant action, it is determined that bicycling is a recreational activity enumerated in GOL
§9-103. It 15further detennined that bicycling is permitted at North Isle Village in eomplJance with the
rules of the co-or. Thus, the property is appropriate or SUitable for the purpose of bicycling as a
rccreational usc. However, it has not been detem1ined that the inf<mtplaintiff \vas a member of the
public with1l1the definition of the statute, thereby precluding the plaintiffs from maintainmg an action
against the management company. As set forth in Wittner v Mackall, 2010 NY Slip Op 32303U [Sup.
CL New York County 20 I 0], the statute grants immunity for ordinary negligence to landowners who
permit members of the public to come onto the1r propcriy to cngage in the enumerated recreational
activities. In the instant action, it has been established that the mfant plaintiff resided with h1Sfmmly 111
a eo-op on the premises and thus was not a member of the public. Merely engagmg Ul an enumerated
<.lctivityis not, 111 nd of ltscJf~sutliclcnt to invoke GOL §9-1 03 (Ackermann v Town of Fishkill, 201
a
AD2d 441, 607 NYS2d 384 [2d Dept 1994]).
The recreational use statute has been applied liberally to public and pnvate land, to rural or urban
propcl1y, whether developed or undeveloped (Rivera I' Glen Oaks Village Owners, fIlC., 41 AD3d 817,
S39 NYS2d 1S3 [2nd Dept 2007]). In Rivera v Glen Oah Village Owners. Inc., the plamtifl" alld two
friends went bicycling and turned off the road onto a dili trail located in a two-acre wooded area, which
was part of a large residential cooperative commulllty. \Vhen the plaintiff came upon a hole in the
ground, his blcycle tire went into the hole, causing him to be thrown over the bicycle's handlebars,
causmg l111n sust<lin injury. I-Iesaw the hole "maybe a second" bet()fe he fell into the hole. The court
to
[* 5]
Roberts v Einsidlcr Management Inc.
Index No. 08-45713
Page No.5
stated that, in return for opening up their lands for public use, property owners are provided immunity
from liability. In the instant action, the defendant, through the testllnony of Shyman, has not
demonstrated that the infant plallltiffwas a member of the public, but instead, that the infant residcd on
the premises, and that the co-op permltted residents to bicycle on the property. Thus, the defendant has
not demonstrated that the action is barred by GOl 9·103.
To establish entitlement to summary judgment based upon GOL §9-103, a defendant must
establish ownership of the property (FillllOcclziaro v Napolitano, 52 AD3d 464,859 NYS2d 477 [2d
Dept 2008]). Generally, a question of fact is raised under the recreational use statute, GOL §9-103, if
there is evidence that the defendant docs not own, lease, or occupy the land where the accident occurred,
or that the plaintiff was not engaged in a listed recreational activity, or that the propelty was not suitable
for recreational use (Morail!s v Coram ,~aterials Corp., supra). No proof has been submitted to this
eourt to demonstrate who the owner of the complex is, although Shyman testified that he was hired by
the owner to manage the property. The owner of the premises has not been named in this action, and the
liability asserted against the defendant is premised upon it being a management company. No copy of a
contract or agreement has been submitted setting forth the duties and responsibilities of the defendant
management company.
In Albright v Met:, 2 [7 AD2d 123, 635 NYS2d 33 [ [3d Dept 1995], affd gS NY2d 656, 649
NYS2d 359 [1996]), the infant plaintiff sustained injury while riding his bicyele on the defendant's
property, and the COUl1of Appeals determined that a contractor, a corporation wholly owned by the
landowner's family, was an occupant of the land within the meaning of § 9~103. Thus, the defendant
contractor was afforded the protection ofGOl §9-103. The plaintIff had argued that to be an
"occupant," the party had to "control access to the land or hold the right to exclude people from the
property," and the contractor did not have such a right. While the Third Department expressly rejected
the test urged by the plaintifl it based its decision on a finding that the contractor was an alter ego of the
owner and was specifically charged with the management of the property, and concluded that the
contractor's authorized presence on the premises was sufficient. On appeal, the Court of Appcals did
not address whether to adopt the test proffered by the plaintiff.
In the Il1stant action, the defendant has not established that it is entitled to dismissal of the
complaint as baiTed by GOL §9-1 03 on the basis that the management company is not the owner, lessee,
or occupant of the land. No evidence has been presented to establish prima facie whether the
management company had an ownership interest in the premlses where the accident occurred. No t~\]nJly
relationship, sLIchas the relationship between the owner and the defendant/contractor/family, present 111
the Albright v Met: action, has been demonstrated to show that Einsidler Managcment is the alter ego of
the owner of North Isle Village. While thc Court of Appeals has not yet established a bright-line test, or
set forth some type of"authonzed presence" standard tor the management company to claim the benefit
of GOL ~9-103, thiS court detelll1ines that the defendant herein has not demonstrated entitlement to the
afllnnative defense that the actlOn is precluded by GOL §9~103. There are multJple factual Issues raised
in the moving papers WhlChpreclude summary judgment on this issue. The defendant has not submitted
a copy of any agreement it had with the owner of the propelty concerning Its duties or responsibilities.
It is f1ll1hernoted that although Shyman testiJied that he maintains an office at North Isle Village, he
stated that he was prescnt at the site only about two days a week. There are factual issues concernmg
[* 6]
Roberts v Emsidler Management Inc.
Index No. 08-4571 3
Page No.6
whether tillS presence alone is sufficient to raise the management company's relationship with the
owner to that of alter ego of the owner. Additionally, Shyman testified that the sidewalks are the
responsibility of the owner, but then added that he supervises the two maintenance workers employed by
the owner. The court has not been advised as to who is the owner of North Isles Village.
Accordingly, the defendant has failed to establish prima facie entitlement to dismissal of the
complaint as barred by GOl ~9-103.
OPEN AND OBVIOUS/INHERENTLY
DANGEROUS
The defendant seeks dismissal of the complaint on the basis that the condition of the raised
sidewalk was open and obvious and that it was not inherently dangerous. Although the question of
whether a condition is hidden, or open and obvious is fact speCific and gcnerally for the finder of fact to
detennine, the court may detennine that the risk is open and obvious as a matter of law where clear and
undisputed evidencc compels sueh a conclusion (Capasso v Village of Go~"relJ" 2011 NY Slip 01' 4188,
2011 N.Y. ApI'. Div. Lexis 4102 [2d Dept, May 17,2011]; Shah v Mercy nrelUeal Center, 71 AD3d
1120, 8981\ryS2d 589 [2d Dept 2010]). A condition that is generally apparent "to a person making
reasonable use ofms senses may be rendered a trap for the unwary where the condition is obscured or
the plaintiff is distracted" (Clark vAMF Bowling Centers, [nc., 2011 NY Slip 01' 3016, 2011 N.Y.
App. Div. Lexis 2944 [2d Dept April 12,2011]; Beek v Bethpage Union Free ScllOol Di!!J·triet,
2011 NY
Slip Op 2339, 919 NYS2d 192 [2d Dept, March 22, 20 II D. Additionally, whether the alleged defect in
the sidewalk was open and obvious is significant only as to the injured infant's comparative fault and
does not relieve the landowners of liability altogether so as to entitle them to summary judgment (Cupo
)1 KQlfunkel,
1 AD3d 48, 767 NYS2d 40 [ld Dcpt 2003]). In the instant action, the defendant merely
asserts in a conclusory manner, unsupported by any evidentiary submissions, that the condition of the
sidewalk was open and obvious and was not inherently dangerous. Shyman testified that he did not
know where the aCCIdentoccuned and had not noticed the raised sidewalk slab upon inspection. The
defendant did not provide measuremcnts conceming the height that the concrete sidewalk slab was
clcvutcd, thus raising a t:1ctual issue coneeming the same.
The defendant also seeks dismissal of the complaint on the basis that the condition of the
sidewalk was not inherently dangerous. Again, the defendant's argument is conclusory and unsupported
by admissible evidence. The burden is on the defendant to demonstrate, as a matter ofiaw, that the
condition of the sidewalk was not inherently dangerous because the condition which caused the infant
plaintitfto fall from his bike was readily observable by the infant employing the reasonable use of his
senses (Cooper v Costello, Inc., 2009 NY Slip op 32040U [Sup. Ct., New York County 2009]; see,
klartillc: )1 Kaufman-Kane Realty Co., Inc., 74 Misc2d 341,343 NYS2d 383 [Sup. Ct., Bronx County
1973]). Here, the defendant has not demonstrated with evidentiary submissions that the condition was
open and obvious to enable this court to detemline that the sidewalk was not inherently dangerous as a
matter oflaw. Whilc this court finds that, ordinarily, a sidewalk is not dangerous in and of itself, there
arc f~lctualissues concerning "whether the owner's neglect or failure to maintain the sidewalk rendered it
unsafe, thus brmging injury to the child" (see generally, Menaker v Aralllark American Food Services.
I11C., 1008 NY Slip Op 3l539lJ [Sup. Ct., Nassau County 2008]). "Whether a dangerous condition
exists 011 real property so as to create liabllity 011 the part of the landowner depends on the peculiar facts
[* 7]
Roberts v Einsidler Management Inc.
Index No. 08-45713
Page No_ 7
and circumstances of cach case and is generally a question of fact for the jury" (Clurk v A1WF Bowling
Centers, Inc., supra). Here, Shyman, from the defendant management company, testified that his
company mspccted and maintained the premises. However, Shyman did not testify concerning
inspections of the sidewalk at issue, findings, if any, upon mspection, or the condition of the sidewalk
where the incident occurred.
Accordingly, the defendant has not established prima facle entitlement to summary judgment on
the issue of whether the condition of the sidewalk was open and obvious and whether it \vas inherently
dangerous.
NEGLIGENCE
In New York, to estabhsh a prima facle case of negligence, a plaintiff must prove (1) that the
defendant owed a duty to plaintiff, (2) a breach thereot: and (3) injury proximately resulting therefrom.
In order to establish the third clement, proximate cause, plaintiff must show that defendant's negligence
was a substantial factor in bringing about the injuI)'. If, defendant's negligencc were a substantial factor,
it is considered to be a "proximate cause" even though other substantial factors may also have
contributed to plaintiffs injury (Spiegel v Fine Paint Co. 2006 NY Misc. LEXIS 2549, 236 NYLJ 51
I:Sup. Ct. Nassau County 2006]). "To recover in a negligence action plaintiff must establish that
defendants owed her a duty to use reasonable care, and that they breached that duty (Atkins v Glens
Falls City School District, 53 NY2d 325, 441 NYS2d 644 [1981 J). In the instant action, the defendant
has failed to demonstrate prima facie that it used reasonable care in inspecting the sidewalk as the
defendant has failed to demonstrate the condition of the sidewalk and what achon was taken to inspect
or remedy the condition. He did not remember seeing the raised sidewalk flag. Thus, there are factual
issues conceming whether there was negligent inspection of the sidewalk by the management company.
Also, Shyman testified that the co-op employed two maintenance workers \vhom he supervises. He
further testified that the sidewalks are the responsibility of the co-op, however, no copy of any contract
or agreement has been submitted by Shyman in support of the eonclusory and somewhat contradic101)'
statements that the condo is responsible for the co-op, and yet he inspects the premises and supcrVlses
those mamtcnance workers employed by the co-op.
"A defendant who movcs for summary judgment in a slip-and-fall case has the initial burden of
making a prima t~lcieshowing that it did not create the hazardous condition that allegedly caused the fall,
and did not have actual or constructive notice of that condition for a sufficlCnt length of time to discover
and remedy it. To meet its burden on the of lack of constructive notice, the defendant must offer some
evidence as to when the accident site was last cleaned or Inspected prior to the plaintifl's fall" (Mei Ziao
Guo v Quong Big Realty CO/])., 81 A03d 610, 916 NYS2d [2d Ocpt 201 IJ). "A property ovvner has a
duty to maintain his or her property m a reasonably safe condition" (Basso v ).l1i1ler, 40 NY2d 233, 386
NYS2d 564 [1978]). "However, a property owner has no duty to protect or wam against an opcn and
obvIOUScondItion, \,vll1chas a matter of law is not ll1hercntly dangerous" (Katz v Westchester COllllty
Healthcare COIporatioll, 201 I NY Slip Op 1620,917 NYS2d 896 [2d Oept 2011 J). Where an allegedly
dangerous condition might have becn open and ObVIOUS, docs not ncgate the defendant's duty to
it
maintain the prCll11SeS reasonably safe condition (Bradley v DiPaterio Mangemellt Corp., 78 AD3d
Il1a
1096. 9 I3 NYS2d 244 [2d Dcpt 20 10J).
[* 8]
Roberts v Einsidler Management Inc.
Index No. 08-45713
Page No.8
Here, Shyman testified that he regularly 111spectedthe area, but did not state when the last time
the accident site was 111spectedand what his findings were. In fact, Shyman testified that he did not
know where the accident occurred and has not previously noticed the raised sidewalk slab. Shyman
failed to establish that the raised concrete sidewalk slab did not exist for a sufficient penod of time for it
to have been discovered and remedied by the defendant in the exercise of reasonable care (see,
Bloomfield v Jericho Union Free School Districf., 80 AD3d 637, 915 NYS2d 294 [2nd Dept 2011])_ It
has not been determined that the condition was open and obvious, whether it was inherently dangerous,
and whether the sidewalk was maintaincd 111 relativcly safc condition. Therefore, there are factual
a
Issues concemmg actual and constructive notice of the condition which preclude summary judgment on
the lssue of negligence.
Accordingly, the defendant has not demonstrated that the premises was maintained in a
reasonably safe condition, that it had no duty to protect the plaintiff, or to warn about the condition of
the sIdewalk at the site of the accident.
ASSUMPTION OF RISK
It is weIl established that the application of the doctrine of assumption of risk "is justified when a
consenting participant is aware oftbe risks, has an appreciation of the nature of the risks, and voluntarily
assumes the risks" of a sporting activity (Morgan v State of New York, 90 NY2d 471, 484, 662 NYS2d
421 [1997]). The doctrine of assumption of the risk wiIl not serve as a bar to liabIlity if the risk is
unussumed, concealed, or unreasonably increased, nor does the doctrine of assumption of the risk
exculpate a landowner from liability for ordinary negligence in maintaining an area such as a playmg
field (Warren v Town ofHe1llpstead, 246 AD2d 536, 667 NYS2d 389 [2d Dcpt 1998]).
"By engaging in a sport or recreatlOnal activity, a participant consents to those commonly
appreciated risks which arc inherent in and arise out of the nature of the sport generally and flow from
such pm1icipation, risks which various participants arc legally deemed to have accepted personal
responsibility for because they commonly inhere in the nature of those activities. Under this
formulatlOn, it follows that the duty of a landowner is to exercise care to make the conditions as safe as
they appear to be. If the risks of the Olctivltyare fully comprehended or perfectly obvious, plaintiffhas
conscnted to them and the defendant has perfonned its duty. It is not necessary to the application of
assumption nfrisk that the injured plaintiff have foreseen the exact manner in which IllSor her injury
occurred, so long as he or shc is aware of tho potential for injury. In assessing a defendant's duty under
the doctrine of assumption, the standard 1S \vhether the alleged defect is unique and created a dangerous
condition over and above the usual dangers that are inherent in the sport" (Schiavone I' Brinewooot! Rod
& Gun Club, Inc., 283 AD2d 234, 726 NYS2d 615 [1st Dept 2001]; see also, Cotty v Town of
SOllthampton, 64 AU3d 251,880 NYS2d 656 [2d Dept 2009])
In Cali.'I'cv City ofNcw York, 239 AD2d 378, 657 NYS2d 430 [2nd Dcpt 1997], the court found
that the assumption of the risk doctrine was a complete bar to a mountain bike rider riding on an
unpaved dirt and rock path in a park when he was thrown from his blke and sustained injury when his
bicycle struck an exposed root. The court detennined that the tree root did not constitute a concealed or
[* 9]
Roberts v Einsidlcr Managemcnt Tnc.
Index No. 08-45713
Page No.9
unreasonably increased risk, or that the city failed to make conditions at the park as safe as they appeared
to be.
While recovery may still be had for damages resulting from exposure to "unreasonably increased
risk" (Morgan, supra at 485; Simoneau v State o/New York, 248 AD2d 865, 866, 669 NYS2d 972 [1St
Dept 1988]), the mere fact that a defendant could feasibly have provided safer conditions is not
dispositive where the risk is open and obvious to the participant taking into consideration the
individual's level of experience and expertise (Morgan, supra; Simoneau, supra; Maddox v City of
New York, 66 NY2d270, 278, 487 NE 553, 496 NYS2d 726 [1985]). Moreover, in assessing the
application of the doctrine of assumption of risk, It is not necessary that the injured plaintiff may have
foreseen the exact manner in which the injury occurred "so long as he or she is aware of the potential fiJI"
injury of the mechanism from which the injury results"(Maddox, supra). In Caraballo v City of
Yonkers, 54 AD3d 796, 865 NYS2d 229 [2d Dept 20081, a 12 year old was injured when the bicycle he
was riding came into contact with a pothole abutting a manhole cover on a city street. The court stated
that the infant, admittedly, was aware of the pothole, but failed to observe it on the date in question when
hc was traveling to a hiend's house. Although the trial court dismissed the complaint on the city's
motion for summary Judgment, the Appellate Division held, as a matter oflaw, that the infant plaintiff
did not assume the risk of being injured by a defective condition on a city street merely because he was
using his bicycle as a means of transportation and participating in the activity of recreational bicycling.
Such is the situation in the instant action where the infant plaintiff was using his bicycle as a means of
transportation, participating in the recreational activity of bicycling, when his bicycle tire struck the
raised cement sidewalk flag. The infant plaintiff was also aware of the raised sidewalk flag, but failed to
observe it at the time of the accident.
Although assumption of the risk to be implied from pal1icipation in a SP0l1with awareness of the
risk is generally a question of fact for a jury, dismissal of a complamt as a matter oflaw is walTanted
when on the evidentiary materials before the cOlllino fact issue remains for decision by the trier of fact
(Maddox I' City oflVew York, 66 NY2d 270, 496 NYS2d 726 [1985]). In the instant action, in movlllg
fl.}rsummary judgment, the defendant argues that the infant plaintiff: in riding his bicycle, assumed the
nsk of encountering all open and obvious conditions on the premises, and thus the defendant is not liable
for the infant's lllJuries. Here, the defendant testified that bicycle riding was pennittcd on the premises
of the apartment complex, although other various sporting activities were prohibited. The mfant plaintiff
testified that he had ridden his bicycle m the area previously, and had ridden on the date of the accident
to visit his fricnds at the apartment complex where he lived. He stated that he did know that the
sidewalk had an elevated flag, however, he ""vasunaware of the same at the time his bicycle tire
cncountered the elevated nag. Here there are factual issues concerning whcther thc doctrine of primary
assumption or the risk is applicable to riding a bicycle on a paved driveway with an adjacent sidewalk
with a raised or elevated cemcnt flag. This court has already deternlined that there arc factual Issues
concerning whether the condition of the sidcwalk was open and obvious and whether it ,>vasinherently
dangerous (se(', .Moore v City of New York, 29 AD3d 751, 816 NYS2d 131 [2d Dcpt 2006]). There arc
fUl1her factual issues concerning whether the condition of the sidewalk increased the chance ofmjury to
a bicyclist and whether the defendant exercised reasonable care in maintaining the sidewalk (sec, Vestal
l' Count)'
Suffolk, 7 AD3d 613, 776 NYS2d 491 l2d Dcpt 2004]). Here, it e<lnllotbe said as a matter
of Inw that the mfant plaintiff assumed the risk of being injured as a result of a defective condition on a
(~r
[* 10]
Roberts v El11sidlerManagement Inc.
Index No. 08-45713
Pagt: NO.1 0
paved pathway merely because he participated III the activity of bicycling, or that his actions were so
extraordinary and unforeseeable as to have been deemed a superseding cause oflus injuries (Vestal v
County olSuffolk, supra). There are also factuallssues concerl1lng whether the infant plaintiff assumed
the risk of a defective, raised area (sec, Bellas v Town of Oyster Bay, 286 AD2d 466, 729 NYS2d 530
[2" Dcpt 200
In.
Accordingly, the defendant has t~liled to demonstrate as a matter oflaw that the doctrine of
assumption risk serves as a bar to the plaintiffs' action.
Motion (001) by the defendant, Einsidler Management Inc., pursuant to CPLR 32 J 2 for an order
granting summary judgment dismissing the complaint in the action is denied.
Dated:.
. / / i ....
~':~../j
.,',
./j i,l .J:_
Hen. DerJ", F. Molia
'" -c.,
J.S.c.
FINAL DISPOSITION
X
NON~FINAL DISPOSITION
