Blumenthal v Bronx Equestrian Ctr., Inc.
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Blumenthal v Bronx Equestrian Ctr., Inc. 2014 NY Slip Op 31654(U) May 7, 2014 Supeme Court, Bronx County Docket Number: 308815/08 Judge: Wilma Guzman Cases posted with a "30000" identifier, i.e., 2013 NY Slip Op 30001(U), are republished from various state and local government websites. These include the New York State Unified Court System's E-Courts Service, and the Bronx County Clerk's office. This opinion is uncorrected and not selected for official publication. [* 1] FILED May 14 2 14 Bronx County Clerk UPREME OURT OF THE STATE OF NEW YORK OUNTY F BRONX Index No. 308815/08 Motion Calendar No. 3 M~J~Q,n Date:3/24/14 LUMENTHAL and EDWARD BLUMENTHAL, "'; Plaintiffs, :againstHE BRON EQUESTRIAN CENTER, INC., d/b/a ELHAM B T STABLES and THE CITY OF NEW YORK DECISION/ ORDER Present: Hon. Wilma Guzman Justice Supreme Court Defendant. ecitation, a required by CPLR 2219(a), of the papers considered in the review of this motion to laintiff' s complaint: Papers otice of M tion, Affirmation in Support, a d Exhibit thereto ............................................................................. . ffirmation in Opposition Numbered and exhibits thereto.............................................................................. eply Affir ation ................................................................................. 2 1 3 After due deliberation upon the foregoing papers, the Decision/Order on this motion is as fi !lows: Defe dants move this Court for an Order summary judgment pursuant to C.P.L.R. §3212 laintiffs complaint on the grounds that there are no triable issues of fact as to liability. Defendants also move to dismiss this complaint pursuant to C.P.L.R. 21 l(a)(7). Plaintiffs submitted written opposition. Plain iff by his mother brought this cause of action for injuries allegedly sustained on September 1 , 2007 when she was thrown from a horse on the premises of the Bronx Equestrian enter. The roponent of a summary judgment motion must make a prima facie showing of Page 1 of 4 [* 2] FILED May 14 2 14 Bronx County Clerk e titlement t judgment as a matter oflaw, tendering sufficient evidence to demonstrate the absence f any mater al issues of fact. Winegrad v. New York University Medical Center, 64 N.Y.2d 851, 853 (1985). ummary judgment is a drastic remedy, and it should not be granted when there is any oubt as to t e existence of a triable issue of fact. Ro tuba Extruders, Inc. v. Ceppos, 46 N. Y.2d 223 ( 978). Th court's function on this motion for summary judgment is issue finding, not issue eterminatio . Krupp v. Etna Life & Cas. Co., 103 A.D.2d 252, 479 N.Y.S.2d 992 (2nd Dept. ary judgment will only be granted if there are no material, triable issues of fact. entieth Cent Fox Film Co ., 3 N.Y.2d 395 (1957). Under the doctrine of primary " ssumption of risk" a person who is a voluntary participant, spectator or even bystander is deemed t have assu ed and consented to the risks inherent in, arising out of, and generally flowing from a certain athl tic or recreational activities. Tadmor v. New York Jiu Jitsu Inc., 109 A.D23d 440 (1st ept. 2013); Roberts v. Boys and Girls Republic, Inc., 850 N.Y.S.2d 38 (1st Dept. 2008). A mo ion to dismiss pursuant to C.P .L.R. § 3211 (a)(7) requires that the Court favorably view to determine whether a valid cause of action exists. Leon v. Martinez, 84 N.Y.2d 83 ( 994). On motion to dismiss pursuant to CPLR § 321 l(a)(7) for failure to state a cause of action, t e pleading s to be afforded a liberal construction (see CPLR § 3026). The court must accept the £ cts as alleg d in the complaint as true, accord the plaintiff the benefit of every possible favorable i ference, a d determine only whether the facts as alleged fit within any cognizable legal t eory.(See, eon v. Martinez 84 N.Y.2d 83, 87-88, 614 N.Y.2d 972 [1994]; SokolofJv. Harriman states Dev. Car ., 96 N.Y.2d 409, 729 N.Y.S.2d 425, 754 N.E.2d 184 [2001]). A CPLR 3211 otion shou d be granted only where "the essential facts have been negated beyond substantial q estion by he affidavits and evidentiary matter submitted." Biondi v. Beekman Hill House ----~~----·' 257 A.D.2d 76 (1st Dept. 1999). Factual claims either inherently incredible or flatly y documentary evidence are not presumed to be true or accorded favorable inference. denied, 89 .Y.2d 802. However, unless it has been shown that a claimed material fact as pleaded not a fact t all and there exists no significant dispute regarding it, dismissal is not warranted. A pl intiff s capacity to appreciate the assumption of the risk of a particular activity may Page 2 of 4 [* 3] FILED May 14 2 14 Bronx County Clerk l"mit the defi ndant's duty. Morgan v. State of New York, 90 N.Y.2d 471 (1997); Roberts supra at 0. An plai tiff who is an infant limited horseback riding experience may not appreciate the risks ssociated st "th such an activity. Maher v. Woodhollow Equestrian Center, LLC., (85 A.D.3d 876, Dept. 2011); "An Assessment of whether a participant assumed a risk depends on the openness nd obvious ess of the risks, the participant's skill and experience, as well as his or her conduct nder the cir umstances and the nature of the defendants conduct. Corica v. Rocking Horse Ranch, I c., 84 A.D d 1566 (3rd Dept. 2011) (Internal citations omitted). A participant who voluntarily ngages in t e activity of horseback riding assumes the risks inherent to that activity, such as the 'sudden and unintended actions of the animals. Dalton v. Adirondack Saddle Tours, Inc., (40 In th instant case the plaintiff testified that she has been riding horses since nine years old, lthough her riding was intermittent, with many years off. As an adult, her riding was under ten t mes. Prior to the incident, she does not recall whether while at the Pelham Bit Stables, she was iven instru ti on or anything to sign. On the day of the incident, she was not given any instruction or was she sked her level of riding experience. Plaintiff testified that as she neared the end of the t ail her hors stopped to eat some grass, which she allowed because he had been a very nice horse. he was not old that she should not permit the horse to stop and eat grass. However, she did recall eing told th t during prior riding experiences as a young girl, although she was not told the reason ition. Approximately two minutes after the horse grazed, the horse started to bolt and he did not remember being thrown from the horse. Plaintiff testified that at the time t e horse sto ped to eat grass the guide was in front of her, already around the curve. No guide was Brennen testified on behalf of defendant. She has worked at the Bronx Equestrian enter for ap roximately 20 to 3 0 years. Bronx Equestrian Center rents the Pelham Bit Stables from t e Departm nt of Parks. Although he was at the stable on September 14, 2007, he had no i volvement with plaintiff. She became aware of the accident when he observed plaintiffs horse r turn to the table. She then went to the bridle path to see what happened. The waivers detail the r sks of ridi g. All riders must sign the waiver prior to going out on the trail. After signing the aiver, the r ders pay the $30 fee and go out with a guide. Mrs. Brennen would also inquire as to Page 3 of 4 [* 4] FILED May 14 2 14 Bronx County Clerk t e rider's le el of ability to match them with a horse. This would also be customary for the other orkers. Gr eters assign trail guides are assigned depending on group size, group composition and r ding abili . She did not know how many people were in plaintiff's party. Nor did she know hich guide as assigned to the plaintiff's party. There are no written riding guidelines given to t e participa ts, however she has heard guides instruct on maintaining distance. There is no struction o preventing the horses from grazing. Defe dant has failed to meet the prima facie burden for summary judgment. Mrs. Brennan ho testified on behalf of plaintiff did not have any knowledge as to the guide who went out on the t ail, whethe this guide inquired as to the riding ability of the plaintiff, or whether plaintiff was i structed as to the rules of horse riding. Furthermore, plaintiff created a question of fact, by t stifying th t the waiver, which purportedly informed of the risks of horseback riding, was not s gned direct y by her but another person in the group. Acco dingly, it is 0 RD RED that defendants motion to dismiss pursuant to C.P .L.R §§3211 (a)(7) and 3212(b) hereby de ied. It is further RED that defendant shall serve a copy of this ord r wit thirty (30) days of entry of this order. his onstitutes the decision and order of this court. DAT Page 4 of 4
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