Lipskier v Domino Park Conservancy LLC

Annotate this Case

Download PDF

Lipskier v Domino Park Conservancy LLC 2023 NY Slip Op 31645(U) May 8, 2023 Supreme Court, Kings County Docket Number: Index No. 500779/2019 Judge: Carl J. Landicino Cases posted with a "30000" identifier, i.e., 2013 NY Slip Op 30001(U), are republished from various New York State and local government sources, including the New York State Unified Court System's eCourts Service. This opinion is uncorrected and not selected for official publication. INDEX NO. 500779/2019 NYSCEF DOC. NO. 141 RECEIVED NYSCEF: 05/16/2023 -~ lAS Term, Term, Part Part 81 (MOA) (MOA) of of the At an IAS York, Supreme Court Court of of the State of of New New York, the State Supreme Kings, at the held County of of Kings, held in and for the County Adams St., Courthouse 360 Adams thereof at 360 Courthouse thereof th th Brooklyn, New New York York on the the 8 of of May May 2023. Brooklyn, PRESENT: PRESENT: CARL J. LANDICINO, LANDICINO, J.S·.C. J.S.C. CARL -------------------------------------------------------------------------x ----------------------------------------x --------------------------------NECHAMA DINA DINA LIPSKIER, LIP SKIER, NECHAMA Index 500779/2019 No. 500779/2019 Index No. Plaintiff, Plaintiff, DECISION ORDER AND ORDER DECISION AND -against-againstDOMINO PARK PARK CONSERVANCY CONSERVANCY LLC, LLC, SKATEBOARD SKATEBOARD DOMINO USA LLC, SUPERCROSS LLC, LLC, VELOSOLUTIONS VELOSOLUTIONS USA LLC, TWO TWO SUPERCROSS TREES MANAGEMENT INC., DOMINO DOMINO MANAGEMENT CO, INC., TREES LLC, A LLC DOMINO B LLC, LLC and DOMINO Motion Sequence #5 Motion Sequence Defendants. Defendants. ---------------------------------------------~---------------------------x -------------·---------------------------x -------------------------------motion: this motion: review of the review Recitation, CPLR 2219(a}; of the papers considered in the of this papers considered 2219(a); of required by CPLR Recitation, as required Papers Numbered (NYSCEF) Numbered (NYSCEF) . Papers Notice of Motion/Cross Motion/Cross Motion Motion and and Notice of Affidavits (Affirmations) Annexed 114-129, Annexed ....... L ............................................... 114-129, Affidavits (Affirmations) Opposing Affidavits (Affirmations} ~ 134, ................................... ·····l··············· .. Opposing Affidavits (Affirmations) Reply 135-137, ............................................... 135-137, Affidavit .............. i,i••••••••••••••••••••••••••••••••••••••••••••••••• Affirmation or Affidavit Reply Affirmation 130 .. Memorandum of Law ............................................... : Memorandum of Law .............................. After of the papers and oral oral argument, argument, the Court Court finds finds as follows: follows: papers and review of After a review against action against this action commenced this Plaintiff, "Plaintiff') commenced (the "Plaintiff') Lipskier, (the Dina Lipskier, Nechama Dina Plaintiff, Nechama USA, Defendants Domino Domino Park Park Conservan~y, Conservancy, LLC, LLC, Skateboard Skateboard Supercross, Supercross, LLC, LLC, Velosolutions Velosolutions USA, Defendants LLC (the Domino B, LLC and Domino LLC and Domino A, LLC LLC, Mamagements Co., Inc., Domino Trees Mamagements Two Trees LLC, Two "Defendants") alleging alleging injury injury as a result result of of a trip trip and fall suffered suffered by the the Plaintiff Plaintiff on August August 12, "Defendants") Domino track in Domino 2018. contends that sporting/recreational track were at a sporting/recreational her son were that she and her Plaintiff contends 2018. The Plaintiff Park (Brooklyn) (Brooklyn) (the (the "Track") "Track") when when the Plaintiff Plaintiff was injured injured as she took took steps steps down down a slope slope in Park riding on the Track. been riding had been response falling off off his bicycle, Track. that he had bicycle, that her son falling response to her 3212, CPLR 3212, or<;ier, pursuant The Defendants (motion sequence sequence #5) for an order, pursuant to CPLR move (motion now move Defendants now granting them summary judgment, and dismissing dismissing all claims claims against against it. The The Defendants Defendants contend contend judgment, and them summary granting 11 [* 1] 1 of 4 o 0 INDEX NO. 500779/2019 NYSCEF DOC. NO. 141 ~.. ~-:°" ,~ t~ ~ ,; e'7 RECEIVED NYSCEF: 05/16/2023 ~ r·· i"'" ned of that the the complai complaintnt should should be dismisse dismissedd as the conditio conditionn complai complained of by the plaintiff plaintiff is is both both open open that us. obvious and not inherentlyly dangero dangerous. not inherent and obvious nts have The Plaintif Plaintiff f opposes opposes the motion. motion. The Plaintiff Plaintiff argues argues that that the Defenda Defendants have failed failed to to The were Defendants were that the Defendants int alleges meet Complaint alleges that much as the Compla burden in as much facie burden prima facie their prima meet their proximate cause ce that negligentt in in the the supervis supervision of the Track Track and it was was that that negligen negligence that was was a proximate cause of of ion of negligen negligent Defendants' negligent that the Defendants' the specifically, contendss that Plaintiff contend ally, the Plaintiff More specific injuries. More Plaintif fs injuries. the Plaintiffs bicycle and peril after supervision of the the Track Track put imminentt peril after he fell from his his bicycle and that that put the her son in imminen ion of supervis Plaintiff The Plaintiff emergency situation the situation.. The respond to an emergency attempting to respond while attempting injured while was injured Plaintiff was the Plaintiff nts have points "danger invites invites rescue" doctrine and argues argues that that the Defenda Defendants have failed failed to to address address rescue" doctrine the "danger to the points to motion. their motion. this doctrine, liability, in their of liability, theory of doctrine, or theory her day in Summaryy judgment drastic; remedy deprives a litigant litigant of of his or her in court, court, that deprives remedy that judgme nt is a drastic: Summar of issues of triable issues of triable absence of the absence doubt as to the and it it "should "should only only be employe employedd when when there there is no doubt and Andre Dept 2005], N.Y.S2d 392 [2d Dept material fact." Kolivas 2005], citing citing Andre 493, 787 N.Y.S2d AD3d 493, Kirchoff, 14 AD3d v. Kirchoff, Kolivas v. material fact." judgment summary judgment v. Pomeroy, 35 NY2d 361, 364,,362 362 N.Y.S.2d proponentnt for summary N.Y.S.2d 1341 [1974]. The propone NY2d 361,364 Pomeroy, 35 v. tendering matter of judgme nt as a matter ent to judgment must showing of of entitlem entitlement of law, law, tendering facie showing prima facie make aa prima must make Sheppard-Mobley See Sheppard-Mobley sufficientt evidenc evidencee to demons demonstrate apsence of of any material material issues issues of of fact. See trate the absence sufficien ' Hospital, Prospect Hospital, v. Prospect Alvarez v. 2004], citing v. 10 AD3d citing Alvarez Dept 2004], N.Y.S.2d 98 [2d Dept AD3d 70, 74, 778 N.Y.S.2d King, 10 v. King, NY2d 64 NY2d Med Ctr., New York Univ. Med. 68 NY2d 320, 324, 324, 508 N.Y.S.2d [1986], Winegra Winegradd v. v. New etr., 64 N.Y.S.2d 923 [1986], NY2d 320, 68 judgment, evidenc motion for summar ing a motion 851,853,487 316 [1985]. [1985]. "In "In determin determining summaryy judgment, evidencee N.Y.S.2d 316 853, 487 N.Y.S.2d 851, ble inferenc ing party, must be be viewed viewed in in the light light most most favor.~bl favor,~ble nonmoving party, and all reasona reasonable inferencee e to the nonmov must N.Y.S.3d AD3d 566, Bruno, 124 AD3d v. Bruno, Adams v. must favor of 566, 11 N.Y.S.3d party." Adams nonmoving party." the nonmoving of the resolved in favor be resolved must be N.Y.S.2d 621 280,281 [2d Dept Dept 2015] 2015] citing citing Valentin Valentin v. v. Parisio,119 AD3d 854, 989 N.Y.S.2d 621 [2d [2d Dept Dept Parisio, 119 AD3d 281 [2d 280, I 2014]. Dept 2014]. N.Y.S.2d 612 [2d Dept 2014]; AD3d 735, 983 N.Y.S.2d v. Velez, 116 AD3d Escobar v. 2014]; Escobar 2 [* 2] 2 of 4 INDEX NO. 500779/2019 NYSCEF DOC. NO. 141 RECEIVED NYSCEF: 05/16/2023 summary entitlement to summary of its entitlement showing of Once facie showing prima facie made a prima has made party has moving party Once a moving admissible form proof in admissible evidentiary proof produce evidentiary judgment, "the burden shifts to the opposing party to produce opp_osing party burden shifts judgment, "the trial of require a trial which require issues of sufficient to establish establish the existence existence of of material of fact which of the action" action" material issues sufficient Dept N.Y.S.2d 837 [2d Dept 493,538 N.Y.S.2d AD2d 493,538 Garnham Oppenheimer, 148 AD2d Brokers v Oppenheimer, Estate Brokers Real Estate Han Real & Han Garnham & sufficiency of the sufficiency regardless of motion, regardless of the motion, denial of requires denial showing requires such a showing make such Failure to make 1989]. Failure 518, 520, 824 AD3d 518, Corp., 34 AD3d Haus. Mgmt. Corp., of v. Cmty. Hous. Demshick v. See Demshick papers. See opposing papers. of the opposing N.Y.S.2d 50 [2d 558, 610 N.Y.S.2d AD2d 558,610 202 AD2d Plotnick, 202 N.Y.S.2d v. Plotnick, Menzel v. see Menzel 2006]; see Dept 2006]; N.Y.S.2d 166, 168 [2d Dept comparative fault from comparative freedom from show freedom required to show Dept "[a] plaintiff longer required plaintiff is no longer However, "[a] Dept 1994]. However, negligence defendant's negligence the defendant's that the show " ... can show in establishing facie case ..."" if ...that they can if they case ... primafacie her prima establishing his or her Mgmt., Inc., 163 Fleet Mgmt., Mall Fleet Auto Mall v. Auto was a proximate "injuries." Tsyganash Tsyganash v. alleged '.'injuries." the alleged of the cause of proximate cause NY3d New York, 31 NY3d v. City Rodriguez v. 2018]; Rodriguez Dept 2018]; AD3d 1033,1034,83 74,75 City of of New 75 [2d Dept N.Y.S.3d 74, 1034, 83 N.Y.S.3d AD3d 1033, 312,320,101 366,371 [2018]. [2018]. N.E.3d 366,371 101 N.E.3d 312,320, Court sequence #5), the Court (motion sequence Defendants (motion Turning motion by the Defendants of the motion merits of the merits Turning to the 'ii Defendants rely The Defendants burden. The facie burden. prima facie finds that their prima meet their failed to meet have failed Defendants have that the Defendants (NYSCEF June 2, 2021 (NYSCEF deposed on June was deposed Plaintiff was primarily Plaintiff. The Plaintiff the Plaintiff. of the deposition of the deposition primarily on the stated "[t]here Plaintiff stated the Plaintiff admission fee, the Doc. "[t]here paid the admission after she paid what she did after asked what When asked Doc. 125). When year old eight year watched my eight youngest and watched two youngest was with my two there with parents to sit, so, I sat there area for parents was an area ,,i' Plaintiff stated the Plaintiff track, the the track, using the were using bike." stated people were other people many other how many asked how When asked 22). When (Page 22). bike." (Page point that "at Plaintiff also stated The Plaintiff "[p]robably, approximately, children." (Page (Page 23). The stated that "at one point approximately, 10 children." "[p]robably, speeding was speeding bike and went on his bike money went one of of the workers ones that collected the money and was that collected were the ones who were workers who employees other employees if any other asked if When asked (Page 23). When fast." (Page through how fast." know how don't know cutoff I don't tracks cutoff! those tracks through those the accident, the her accident, explain her asked to explain When asked were (Page 24). When "[n]o." (Page stated "[n]o." Plaintiff stated the Plaintiff present, the were present, of me, front of right in front almost right was almost which was curb, which came to a curb, Plaintiff when my son came ]ell I when "[w Jell that, "[w stated that, Plaintiff stated Plaintiff The Plaintiff (Page 30). The track." (Page the track." of the side of he fell down right on the side was right which was grass which of grass slope of the slope down the 3 [* 3] 3 of 4 INDEX NO. 500779/2019 NYSCEF DOC. NO. 141 RECEIVED NYSCEF: 05/16/2023 then stated ]o, I1 quickly stated that, "[ss]0, quickly went went to him. I1 went went down down cautiously cautiously it is a little little slope. slope. I1 wanted wanted to make make sure he was okay okay I1 wanted wanted to make make sure no other other kid will fall on top of of him, him, too. The same way it happened happened to him. him. As I1 went went down, down, I1 took took like one or two steps steps and I1 fell down." down." The Plaintiff Plaintiff then then stated stated that that "I told told him him to quickly quickly move move because because I1 didn't didn't want want him to get hurt. And And end up being being [sic] another another boy boy fell down down on top of of us with with his bike." bike." (Page (Page 30). The testimony testimony of of the the Plaintiff Plaintiff relates relates to more more than than the nature nature of of the slope slope and her fall. The i Plaintiff Plaintiff has indicated indicated that that she needed needed to immediately immediately attend attend to her her son because because of of the alleged alleged unsupervised unsupervised and dangerous dangerous nature nature of of the Track Track she perceived perceived put put him him in imminent imminent peril peril after after he argues that that this this dangerous dangerous condition condition was a product product of of a negligent negligent lack lack of of supervision supervision on fell. She argues Track in relation relation to the activity activity of of the other other Track Track participants. participants. See Encompass v. the Track Encompass Indem. Co. v. Rich, 131 AD3d AD3d 476,478, 476, 478,1414 N.Y.S.3d 491,493 [2d Dept Dept 2015]; 2015]; see also also Raldiris v. Enlarged Rich, 131 N.Y.S.3d 491,493 Raldiris v. Enlarged of Middletown, AD3d 1111, 1114, 118 N.Y.S.3d Dept 2020]. 2020]. Middletown, 179 AD3d N.Y.S.3d 696, 701 [2d Dept City Sch. Dist. of Accordingly, the Defendants Defendants have have failed failed to address address the theory theory of of negligence negligence put put forward forward by the Accordingly, .1 Plaintiff and as a result result have have failed failed to meet meet their their prima burden. Plaintiff prima facie facie burden. Since the Defendants Defendants failed failed to meet meet their their prima burden, we need need not not consider consider the Since prima facie facie burden, sufficiency of of the Plaintiffs Plaintiffs opposition opposition papers. papers. See Winegrad Winegrad v. v. New sufficiency New York Univ. Med. Ctr., 64 N.Y.2d 851,853,476 N.E.2d 642, 643 [1985]; [1985]; Ortiz Ortiz v. v. Town of of Islip, A.D.3d 699, 700, 700,107 N.Y.2d 851,853,476 N.E.2d 642,643 Islip, 175 A.D.3d 107 N.Y.S.3d Dept 2019]. 2019]. N.Y.S.3d 394, 395 [2d Dept Based on the foregoing, foregoing, it is hereby hereby ORDERED ORDERED as follows: follows: Based Plaintiffs motion motion (Motion (Motion Sequence Sequence #5) for summary summary judgment denied. Plaintiffs judgment is denied. Constitutes the Decision Decision and Order Order of of the Court. Court. This Constitutes ENTER: ENTER: arl J. La,4icino, J.S. . [* 4] 4 of 4

Some case metadata and case summaries were written with the help of AI, which can produce inaccuracies. You should read the full case before relying on it for legal research purposes.

This site is protected by reCAPTCHA and the Google Privacy Policy and Terms of Service apply.