| Winkler v County of Nassau |
| 2008 NY Slip Op 08729 [56 AD3d 550] |
| November 12, 2008 |
| Appellate Division, Second Department |
| Rita Winkler, Respondent, v County of Nassau, Defendant,and Town of Oyster Bay et al., Appellants. |
—[*1] Sanders, Sanders, Block, Woycik, Viener & Grossman, P.C., Mineola, N.Y. (Barbara E.Manes and Melissa C. Ingrassia of counsel), for respondent.
In an action to recover damages for personal injuries, the defendants Town of Oyster Bay andSyosset-Woodbury Community Park appeal from an order of the Supreme Court, Nassau County(Spinola, J.), entered November 20, 2007, which denied their motion for summary judgmentdismissing the complaint insofar as asserted against them.
Ordered that the order is affirmed, with costs.
The plaintiff claims she was injured when she collided with another skater (hereinafter theskater) while ice skating at the Syosset-Woodbury Community Park Ice Rink (hereinafter the icerink). The defendants Town of Oyster Bay and Syosset-Woodbury Community Park (hereinafterthe defendants) moved for summary judgment dismissing the complaint insofar as assertedagainst them, asserting that the plaintiff assumed the risk of collision by voluntarily skating at theice rink. The Supreme Court denied their motion, finding that there were issues of fact as towhether the defendants negligently failed to supervise and control the skater. We affirm.[*2]
The defendants failed to establish their prima facieentitlement to summary judgment as the evidence indicated that one of the "rink guards"acknowledged the skater's inappropriate behavior after the skater collided with another skater'schild. The evidence further indicated that the skater persisted in skating in the opposite directionfrom the other skaters and otherwise skated recklessly before he eventually collided with theplaintiff. Under the circumstances, the defendants failed to establish that the accident wasprecipitated by a sudden collision common to skating and not by reckless actions of the skaterwhich the defendants could have prevented by exercising adequate supervision at the skating rink(see Fritz v City of Buffalo, 277 NY 710 [1938]; Ballan v Arena Mgt. Group, LLC, 41 AD3d 1015, 1016 [2007];Conrad v United Skates of Am., 251 AD2d 281 [1998]; Shorten v City of WhitePlains, 224 AD2d 515 [1996]; Bloom v Dalu Corp., 269 App Div 192, 193 [1945]).Lifson, J.P., Santucci, Balkin and Belen, JJ., concur.