Johnson v City of New York

[*1] Johnson v City of New York 2009 NY Slip Op 52411(U) [25 Misc 3d 1234(A)] Decided on November 30, 2009 Supreme Court, Queens County Siegal, J. Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. This opinion is uncorrected and will not be published in the printed Official Reports.

Decided on November 30, 2009
Supreme Court, Queens County

Javed Johnson, etc., et al., Plaintiffs,

against

The City of New York, et al., Defendants.



7877 2007

Bernice Daun Siegal, J.

The following papers numbered 1 to 17 read on this motion by defendants the City of New York (City), The New York City Department of Parks and Recreation (Department of Parks), and The Federation of Black Cowboys, Inc. (Federation) for leave to serve a late motion for summary judgment and, upon granting leave, the City and the Federation seek summary relief; and on this cross motion by defendant Ramjit Singh (Singh) for similar relief.

Papers

Numbered

Notice of Motion - Affidavits - Exhibits........................................1 - 4

Notice of Cross Motion - Affidavits - Exhibits..............................5 - 8

Answering Affidavits - Exhibits.....................................................9 - 12

Reply Affidavits - Exhibits.............................................................13 - 17

Upon the foregoing papers it is ordered that the motion and cross motion are determined as follows:

On October 8, 2006, plaintiff Javed Johnson was allegedly injured when he was thrown from a horse owned by defendant Julius Stanton (Stanton) while on a trail ride with Stanton and nonparty Marquise Jemmott. The horse was allegedly "spooked" by the traffic, causing him to rear up, bolt into the roadway, and attempt to jump over the hood of a taxi cab owned and operated by Singh. The horse ridden by plaintiff Javed Johnson was boarded at Cedar Lane Stables, the use of which was licensed by the City and the Department of Parks to the Federation. The infant plaintiff, by his mother, and his mother suing derivatively, subsequently commenced [*2]this personal injury action against defendants.

The court, in its discretion, will entertain defendants' otherwise untimely motion and cross motion for summary judgment because defendants have demonstrated "good cause" for the delay. (See Brill v City of New York, 2 NY3d 648, 652 [2004].) In the absence of a court order or rule to the contrary, CPLR 3212(a) requires summary judgment motions "to be made no later than 120 days after the filing of the note of issue, except with leave of court on good cause shown" (cf. Espejo v Hiro Real Estate Co., 19 AD3d 360 [2d Dept. 2005]). Here, the summary judgment motion by the City, the Department of Parks, and the Federation and the cross motion by Singh were served approximately five months after the expiration of the statutory deadline. However, the deposition of a key witness, Marquise Jemmott, was not held until almost seven months after the note of issue had been filed, owing to difficulties encountered in contacting and securing his appearance at a deposition (Butt v Bovis Lend Lease LMB Inc., 47 AD3d 338 [1st Dept. 2007] [holding that good cause was shown for an untimely summary judgment motion because the initial deposition had been lost at the death of the stenographer]). Defendants further asserted that the belated deposition testimony of Mr. Jemmott, an eyewitness to the subject incident, was relevant and crucial to their summary judgment motions because, during the infant plaintiff's deposition, he was unable to recall the details as to how the accident happened. (See Simpson v. Trace Equip. Corp. 59 A.D3d 1140 [4th Dept. 2009]; see also Cooper v. Hodge, 13 AD3d 1111 [4th Dept. 2004]; cf. Anderson v Kantares, 51 AD3d 954 [2d Dept. 2008] [holding that summary judgment failed because there was a failure to demonstrate good cause]; Lo Grasso v Myer, 16 AD3d 1089 [4th Dept. 2005].) Shortly after the receipt and execution of Mr. Jemmott's deposition transcript, defendants moved for summary judgment.

Turning to the merits of the motion by the City, the Department of Parks, and the Federation and the cross motion by Singh for summary judgment dismissing the complaint and all cross claims, said defendants contend, inter alia, that the infant plaintiff had assumed the risks commonly associated with horseback riding. 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, 90 NY2d 471 [1997]; Turcotte v Fell, 68 NY2d 432, 440-44 [1986]). Risks inherent in a sporting activity are those which are known, apparent, natural, or reasonably foreseeable consequences of the participation (id.). An assessment of whether a participant assumed a risk depends on the openness and obviousness of the risks and the participant's skill, experience, and conduct under the circumstances (see Dalton v Adirondack Saddle Tours, Inc., 40 AD3d 1169, 1171 [3rd Dept. 2007]). If the doctrine of primary assumption of risk applies, it relieves the defendant of a legal duty to the plaintiff and, thus, he or she cannot be charged with negligence (see Turcotte, 68 NY2d 432, 438 [1986]; Cotty v Town of Southampton, 64 AD3d 251, 252 [2d Dept. 2009]).

Defendants established, prima facie, their entitlement to judgment as a matter of law that the infant plaintiff, being aware of the known dangers of horseback riding, assumed the risk of his injuries when he was thrown from a horse, which, after getting "spooked," bolted into a [*3]roadway and attempted to jump over the hood of a taxi cab (see Eslin v County of Suffolk, 18 AD3d 698, 699 [2d Dept. 2005]; Smith v Hunting View Farm, 265 AD2d 928 [4th Dept. 1999]; Freskos v City of New York, 243 AD2d 364 [1st Dept. 1997]; Morrelli v Giordano, 206 AD2d 464 [2d Dept. 1994]). In opposition, plaintiffs failed to raise a triable issue of fact. "It is well established that an inherent risk in sporting events involving horses is injury due to the sudden and unintended actions of the animals" (see Tilson v Russo, 30 AD3d 856, 857 [3rd Dept. 2006]citing (Norkus v. Scolaro, 267 AD2d 666, 267 [3rd Dept. 1999]; see also Kinara v Jamaica Bay Riding Academy, Inc., 11 AD3d 588 [2d Dept. 2004]; Becker v Pleasant Valley Farms, Ltd., 261 AD2d 427 [2d Dept. 1999]). Additionally, the evidence in the record showed that plaintiff Javed Johnson, who was 13 years old at the time of the accident, had first ridden a horse at the age of seven, and had taken approximately 10 horseback riding lessons. The infant plaintiff frequented Cedar Lane Stables for four years, and, twice per week for two years prior to the accident, he assisted boarders and members of the Federation in caring for their horses. In return for his services, which included, among other things, cleaning stalls and feeding horses, the owner of the horse would allow plaintiff Javed Johnson to ride his or her horse. In fact, the injuries giving rise to this action occurred when, after having helped Stanton that day, the infant plaintiff was riding Stanton's horse. Plaintiff Javed Johnson and his mother, plaintiff Janice Bowen Johnson, also testified at their depositions that the infant plaintiff was aware that falling off a horse was a risk associated with horseback riding. Moreover, although plaintiff Javed Johnson had not previously fallen off a horse, an injured plaintiff need not foresee the exact manner in which the 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 City of New York, 66 NY2d 270, 278 [1985]; see also Hund v Gramse, 5 AD3d 1036 [4th Dept. 2004]; see Papa v Russo, 279 AD2d 744, 745 [3rd Dept. 2001]).

In further support of his cross motion for summary judgment, Singh argues that he is insulated from liability by the emergency doctrine. Under the emergency doctrine, "when an actor is faced with a sudden and unexpected circumstance not of his or her own making which leaves little or no time for thought, deliberation, or consideration, or causes the actor to be reasonably so disturbed that the actor must make a speedy decision without weighing alternative courses of conduct, the actor may not be negligent if the actions taken are reasonable and prudent in the emergency context" (Rivera v New York City Transit Authority, 77 NY2d 322, 327 [1991]). Here, the evidence presented by Singh demonstrates that Singh was either fully stopped at an intersection or was moving slowly towards the intersection when the horse ridden by plaintiff Javed Johnson, which was located on the side of the road adjacent to his vehicle, bolted into the roadway and attempted to jump over the hood of Singh's taxi cab. Although Singh testified at his deposition that he had observed a horse on the side of the road as he approached the intersection, the horse suddenly and unexpectedly jumped into the path of Singh's vehicle. The statement of April Leong, another driver who witnessed the subject incident, established that the time between the horse jumping into the road and onto the hood of the taxi cab was "instantaneous." The situation faced by Singh was akin to an instantaneous cross-over scenario, not of his own making, in which a vehicle traveling in the opposite direction crosses over into oncoming traffic (see Cheung v Dominican Convent of Our Lady of the Rosary, 22 AD3d 450 [*4][2d Dept. 2005]; see also Ryder v County of Fulton, 303 AD2d 847 [3rd Dept. 2003]). "Such an event constitutes a classic emergency situation as a matter of law, thus implicating the emergency doctrine" (Gajjar v Shah, 31 AD3d 377, 377-78 [2d Dept. 2006]; see also Lee v Ratz, 19 AD3d 552 [2d Dept. 2005]). In opposition, plaintiffs failed to present sufficient evidence to raise a triable issue of fact as to whether Singh had operated his vehicle in a negligent manner. Plaintiffs' assertion that Singh should have seen the horse earlier, or that defendant could have prevented his vehicle from striking the horse by taking some unspecified evasive action, is mere speculation, which is insufficient to defeat a motion for summary judgment (see Marsch v Catanzaro, 40 AD3d 941, 942 [2d Dept. 2007]; Boos v Bedrock Materials, Inc., 16 AD3d 447 [2d Dept. 2005]).

Furthermore, the court rejects plaintiffs' contentions that the liability of the City, the Department of Parks, and the Federation arose from their failure to comply with Vehicle and Traffic Law § 1265(1) and General Business Law § 396-dd. It is an axiom of statutory construction that the legislative intent is to be ascertained from the language used, that where the words of a statute are clear and unambiguous, they should be literally construed, and where a statute applies expressly to a person or act, then one must infer that any omission was intentional (McKinney's Cons Laws of NY, Statutes § 240; see Eaton v New York City Conciliation & Appeals Bd., 56 NY2d 340 [1982]). Therefore, the plain language of Vehicle and Traffic Law § 1265(1), which provides that a person under the age of 14 must wear a helmet while riding a horse, compels the conclusion that the statute confers a duty on the individual horseback rider and does not obligate a third party to provide such protective headgear to him or her. Similarly, General Business Law § 396-dd, which requires horse providers to supply protective helmets to riders less than 14 years of age at no cost beyond the rental fee, is inapplicable under the circumstances of this case. A "horse provider" is defined by the statute as any person, firm, corporation, or other legal entity hiring or renting

out horses for riding or providing training in the riding of horses for consideration (General Business Law § 396-dd[1][b]). While the license agreement between the Federation and the City and the Department of Parks indicates that the Federation shall offer a horse-riding instruction program to the public, the Federation did not rent a horse for riding to plaintiff Javed Johnson and the infant plaintiff was not engaged in a horseback riding lesson provided by the Federation at the time of the subject accident. Therefore, Vehicle and Traffic Law § 1265(1) and General Business Law § 396-dd cannot serve as a basis for the liability of the City, the Department of Parks, and the Federation to plaintiffs.

Accordingly, the motion by the City, the Department of Parks, and the Federation and the cross motion by Singh for summary judgment dismissing the complaint and all cross claims insofar as asserted against them are granted.

Dated: November 30, 2009 [*5]

J.S.C.