Clarke v Catamount Ski Area

Clarke v Catamount Ski Area 2011 NY Slip Op 06586 Decided on September 27, 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 September 27, 2011
Andrias, J.P., Sweeny, Moskowitz, Richter, Román, JJ. 5570-
115178/07 5570A 103470/08

[*1]James A. Clarke, Plaintiff-Appellant,

v

Catamount Ski Area, et al., Defendants, Catamount Development Corporation, et al., Defendants-Respondents. [And Another Action]



 
Frekhtman & Associates, Brooklyn (Andrew Green of
counsel), for appellant.
Roemer, Wallens, Gold & Mineaux, LLP, Albany (Matthew J.
Kelly of counsel), for Catamount Development Corporation,
respondent.
Quirk & Bakalor, P.C., New York (Richard H. Bakalor of
counsel), for Zack Lang and Cari Lang, respondents.

Order, Supreme Court, New York County (Joan M. Kenney, J.), entered June 3, 2010, which, to the extent appealed from as limited by the briefs, granted defendant Catamount Development Corporation's motion for summary judgment dismissing the complaint, unanimously affirmed, without costs. Order, same court and Justice, entered June 10, 2011, which granted the Lang defendants' motion for summary judgment dismissing the complaint, unanimously affirmed, without costs.

Plaintiff seeks damages for injuries he suffered when he and defendant Zack Lang collided while skiing at an area operated by defendant Catamount Development Corporation. This accident was the result of inherent risks in downhill skiing (see General Obligations Law § 18-101). Defendants made prima facie showings of entitlement to judgment as a matter of law based on the doctrine of assumption of risk; plaintiff admitted awareness of the inherent risks of downhill skiing and defendants submitted proof that they did not enhance such risks (see Farone v Hunter Mtn. Ski Bowl, Inc., 51 AD3d 601 [2008], lv denied 11 NY3d 715 [2009]; Whitman v Zeidman, 16 AD3d 197 [2005]).

In opposition, plaintiff failed to raise an issue of fact. Plaintiff's speculative deposition testimony as to the reckless nature of Zack's skiing at the time of the collision is insufficient to defeat the motion for summary judgment. Further, the court properly declined to consider the affidavit of plaintiff's expert, given that plaintiff failed to timely disclose the expert's identity (see Harrington v City of New York, 79 AD3d 545, 546 [2010]). In any event, the conclusory [*2]affidavit is insufficient to raise an issue of fact as to whether defendants unreasonably increased the risks to which plaintiff
was exposed (see Bedder v Windham Mtn. Partners, LLC, 86 AD3d 428 [2011]; Bono v Hunter Mtn. Ski Bowl, 269 AD2d 482 [2000], lv denied 95 NY2d 754 [2000]).

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

ENTERED: SEPTEMBER 27, 2011

CLERK