Schoneboom v B.B. King Blues Club & Grill

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Schoneboom v B.B. King Blues Club & Grill 2009 NY Slip Op 08160 [67 AD3d 509] November 12, 2009 Appellate Division, First Department Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. As corrected through Wednesday, January 6, 2010

David Schoneboom et al., Appellants,
B.B. King Blues Club & Grill, Respondent.

—[*1] The Law Offices of Christopher P. DiGiulio, P.C., New York (William Thymius of counsel), for appellants.

Havkins Rosenfeld Ritzert & Varriale, LLP, New York (Steven H. Rosenfeld of counsel), for respondent.

Order, Supreme Court, New York County (Marcy Friedman, J.), entered on February 26, 2009, which granted defendant's motion for summary judgment dismissing the complaint, unanimously affirmed, without costs.

Plaintiffs are barred by the doctrine of primary assumption of the risk from seeking damages for the injuries plaintiff David Schoneboom suffered when an identified person in a group of slam dancers slammed into him. After observing the open and obvious slam dancing from a safe vantage point, and fully appreciating the risk of colliding with a slam dancer, plaintiff nonetheless elected to place himself in close proximity to that activity, thereby assuming the risk that resulted in his injuries (see Morgan v State of New York, 90 NY2d 471, 484 [1997]; Turcotte v Fell, 68 NY2d 432, 437-439 [1986]; Roberts v Boys & Girls Republic, Inc., 51 AD3d 246, 247-248 [2008], affd 10 NY3d 889 [2008]).

Plaintiff's remaining arguments are unavailing. Concur—Mazzarelli, J.P., Sweeny, Catterson, Acosta and Abdus-Salaam, JJ. [See 2009 NY Slip Op 30419(U).]