Grix v RCPI Landmark Props. LLC

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Grix v RCPI Landmark Props. LLC 2011 NY Slip Op 33424(U) December 20, 2011 Sup Ct, NY County Docket Number: 100656/09 Judge: Eileen A. Rakower Republished from New York State Unified Court System's E-Courts Service. Search E-Courts (http://www.nycourts.gov/ecourts) for any additional information on this case. This opinion is uncorrected and not selected for official publication. [* 1] lNEDON I212712011 SUPREME COURT OF THE STATE OF NEW YORK Index Number : 100656/2009 GRIX, MAUREEN 1 7 PART v9 RCPl LANDMARK PROPERTIES INDEX NO. Sequence Number : 004 MOTION DATE SUMMARY JUDGMENT The followlng papers, numbered Ito Notles of Motlon/Ordor to Show Cause Answering Affldavlta MOTION SEQ. NO. , were mad on thlr rnotlon toHor -Affldavlta - ExhlblG (No(s). I Wd. 3 - Exhlbltr Replylng Affldavlts (NOW. 7 Upon the foregoing paperq, It I ordered that thlr motion I s s FILED DEC 27 2011 NEW YORK COUNTY CLERKS OFFICE Dated: I CHECK ONE: . ..................................................................... J.S.C. MQN. EILEEN A. M O E I WR C \ / - R CASE DISPOSED ........................... MOTION IS: GRANTED CHECK IF APPROPRIATE: ................................................ 0SETTLE ORDER 2. CHECK AS APPROPRIATE: 3. x /2/Za 111 0DO NOT POST NON-FINAL DISPOSITION 0GRANTED IN PART 0OTHER 0SUBMIT ORDER 0FIDUCIARY APPOINTMENT 0REFERENCE DENIED [* 2] c Index No. 100656/09 Plaintiff, Mot. Seq. 004 Decision and Order - against RCPI LANDMARK PROPERTIES, LLC, PATINA RESTAURANT GROUP LLC, TISHMAN SPEYER PROPERTIES, LP, and TISHMAN SPEYER PROPERTIES, INC., DEC 27 a1 1 NEW YORK COUV7Y CLERK S OFFICE Defendants. HON. EILEEN A. M O W E R , J.S.C. . . Plaintiff brings this action for personal injuries allegedly sustained when she fell while she was ice skating at Rockefeller Center located on Fifth Avenue between East 49* Street and East 50* Street in the County and State of New York on December 5, 2008. Plaintiff alleges that her accident occurred as the result of dull blades on her skates and a choppy ice surface. Defendants, owners and operators of the subject ice rink, now move for summary judgment pursuant to CPLR 3212. Plaintiff opposes. According to plaintiffs testimony, she has been ice skating since she was a child, and has skated at Rockefeller Center for most of her life. Plaintiff considers herself an intermediate skater. On the date of the accident, plaintiff looked at the ice and did not notice any holes but that, after three or four minutes of skating in the outer portion of the rink, she noticed the ice wasn t as smooth as I would have liked it to be. Plaintiff continued around the rink for a minimum of four times before her 1 [* 3] accident occurred. Plaintiff claims that she was g1iding straight ahead when she just fell and found herself on the ice. Defendants, in support of their motion, submit: the pleadings; the deposition transcript of plaintiff; the continued deposition transcript of plaintiff; the deposition transcript of Carol Olsen, Director of the subject ice skating rink; the videotaped deposition transcript of Kathleen Guarneri, a non-party witness; a Local Climatological Data report for December 2008; and an accident report. Defendants assert that plaintiff, an experienced skater, assumed the risk of ice skating, an inherently risky activity. Plaintiff, in opposition, submits the report of Steve Bernheim, President of Sports and Recreation Consultants, Inc. Plaintiff claims that defendants unreasonably increased the risk of skating by negligently maintaining the skates, thereby allowing the blade to become dull, and by negligently maintaining the ice. Plaintiff points to her expert s report, wherein he opines that the dull blade edges on the rental skates . . , materially increased the risk of danger associated with skating, by not allowing grip of the ice, and that defendants were negligent in failing to keep a smooth skating surface. The proponent of a motion for summary judgment must make a prima facie showing of entitlement to judgment as a matter of law. That party must produce sufficient evidence in admissible form to eliminate any material issue of fact from the case. Where the proponent makes such a showing, the burden shifts to the party opposing the motion to demonstrate by admissible evidence that a factual issue remains requiring the trier of fact to determine the issue. The affirmation of counsel alone is not sufficient to satis@ this requirement. ( Zuckerman v. City of New York, 49 N.Y.2d 557 [ 19801). In addition, bald, conclusory allegations, even if believable, are not enough. (Ehrlich v. American Moninger Greenhouse Mfg. Corp.,26 N.Y.2d 255 [ 19701). ( Edison Stone Corp. v. 42nd Street Development Corp.,145 A.D.2d 249,25 1-252 [ 1st Dept. 19891). Pursuant to the doctrine of primary assumption of risk, one is deemed to have assumed, as a voluntary participant . . . certain risks occasioned by athletic or recreational activity, and to the extent of such an assumption, any legally enforceable duty to reduce the risks of such activity is limited. Defendant s duty may vary depending on the plaintiffs level of skill and the capacity to appreciate the risks of a particular activity. (Roberts v. Boys and Girls Republic, Inc., 51 AD3d 246[lst 2 [* 4] Dept. 20081). With respect to the condition of the ice, the assumption of risk doctrine may encompass risks engendered by less than optimal conditions, provided that those conditions are open and obvious . . . In such circumstances, defendant s duty is limited to exercising care to make the conditions as safe as they appear to be. (Roberts at 247). Here, plaintiff, who was a self proclaimed intermediate skater, who had been skating at Rockefeller Center for years, concedes that she noticed that the ice did not feel as smooth as usual, and that she observed wedges from the skates with some . * . sections of very fluffy ice. Ms. Guarneri, plaintiffs friend, who was with her on the date of the accident, testifies that the she commented to plaintiff that there was buildup on the ice , . , slushy ice, wet ice, and that plaintiff agreed with her. Plaintiff initially received a pair of skates, which she returned. She claims only that the second pair were fine as far as putting them on. She admits looking at them but not inspecting them. Ms. Olsen, the rink director, testifies that the skates are sharpened every day and that she personally inspected plaintiff s skates right after they were taken off as part of the procedure of recording an accident report. Ms. Olsen testifies that she did not find anything wrong with the skates. However, the skates were immediately placed back into service after the accident. It is important to note. that at the time Ms. Olsen, in effect, discarded the skates, she was not on notice that there was a problem with the skates. Thus, while they were placed back in service, such discarding was not in bad faith. (See; Greater New York Mut. Ins. Co. v. Curbeon, 300 AD2d 182 [l Dept. 2002J)Neither plaintiffs expert, nor plaintiff inspected the skates after the accident. Despite plaintiffs feeling that the ice did not feel as smooth as usual, and her visual observations, she continued to skate around the outer edge of the rink. The facts here are similar to those in Rossman v. RCPI Landmark Properties, LLC, 41 AD3d 3 18, where the court dismissed plaintiffs complaint because she testified that she observed that the skating surface was deteriorating, and there were ice chips, bumps, and wet spots, yet she continued to skate for fifteen minutes before her fall. (Id.1 3 [* 5] Plaintiff urges that there was a hidden risk in the skates b&ng dull. However, plaintiffs own testimony establishes that she had the opportunity to inspect the skates before skating. Additionally, she admits the skates did not cause her to have trouble making turns, despite her expert s opinion that it was dull blades which made plaintiff unable to grip the ice properly. The accident report does not reflect trouble with the blades, and merely quotes plaintiff as stating that I was skating and I lost my balance. Plaintiff, who concedes that she never examined the blades either before or after her accident, testifies that it was not until two or three weeks later, when she was speculating as to what caused her accident, that she thought it may have been the blades. Wherefore, it is hereby ORDERED that the motion for summary judgment is granted; and it is further ORDERED that and the complaint is dismissed in its entirety; and it is further ORDERED that the Clerk is directed to enter judgment accordingly. DATED: December 20,201 1 EILEEN A. RAKOWER, J.S.C. NEW YORK COUNTY CLERKS OFFICE 4

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