| Morales v Coram Materials Corp. |
| 2009 NY Slip Op 06007 [64 AD3d 756] |
| July 28, 2009 |
| Appellate Division, Second Department |
| Aaron W. Morales, Respondent, v Coram Materials Corp.et al., Defendants, and Pro-Tek Security System, Inc., Appellant. |
—[*1] Steven Cohen, P.C., Carle Place, N.Y. (Susan E. Dantzig of counsel), forrespondent.
In an action to recover damages for personal injuries, the defendant Pro-Tek SecuritySystem, Inc., appeals from so much of an order of the Supreme Court, Suffolk County (Costello,J.), dated December 13, 2006, as denied its cross motion for leave to renew that branch of itsprior cross motion which was for summary judgment dismissing the complaint insofar asasserted against it, which had been denied in an order dated January 3, 2006.
Ordered that the order dated December 13, 2006, is reversed insofar as appealed from, on thelaw, with costs, the cross motion of the defendant Pro-Tek Security System, Inc., for leave torenew is granted and, upon renewal, so much of the order dated January 3, 2006, as denied thatbranch of the cross motion which was for summary judgment dismissing the complaint insofar asasserted against Pro-Tek Security System, Inc., is vacated, and that branch of the cross motion isgranted.
On June 14, 2003, the plaintiff and three friends were riding their all-terrain vehicles,commonly referred to as ATVs, on property owned by the defendant Coram Materials Corp.(hereinafter Coram). The evidence presented by the appellant upon renewal established that theplaintiff was an experienced ATV rider. He began riding ATVs in 1996 and purchased the ATVhe was riding at the time of his injury approximately five years before the accident. The subjectproperty, located in Miller Place, is approximately 400 acres and largely consists of a sand andgravel mine operated by Coram. Upon entering the property, from a vantage point ofapproximately 100 feet above the sand and gravel mine, the plaintiff observed hills of sand,rocks, and gravel and construction equipment, including bulldozers, payloaders, and conveyorbelts. Shortly after entering the property, the plaintiff and his friends encountered a securityguard employed by the defendant Pro-Tek Security System, Inc. (hereinafter Pro-Tek), whichhad been retained by Coram to provide security services at the sand and gravel mine.Immediately prior to encountering the security guard, one of the plaintiff's fellow riders fell offhis ATV while riding down a hill. After encountering the security guard, the plaintiff ascended a40- or 50-foot hill of sand and gravel, the far side of which had been excavated for miningpurposes. As the plaintiff drove over the top of the hill, he observed [*2]that the center of the hill was "missing." The plaintiff braked butwas unable to stop and fell approximately 40 or 50 feet, sustaining serious injuries. Although theplaintiff was not aware that the hill had been excavated on the opposite side of that which heascended, he failed to explore the area prior to his ascent. Moreover, he was aware that the hillwas not part of the natural terrain, but rather was created by the machinery located on theproperty.
Contrary to the determination of the Supreme Court, the deposition testimony which had notbeen elicited at the time of Pro-Tek's original motion for summary judgment was new evidencefor the purpose of a motion for leave to renew (see Ramirez v Khan, 60 AD3d 748 [2009]; Staib v City of NewYork, 289 AD2d 560 [2001]; J.D. Structures v Waldbaum, 282 AD2d 434 [2001]).
By submitting new facts not previously available, Pro-Tek established its prima facieentitlement to summary judgment under the doctrine of primary assumption of risk (seeCPLR 3212 [b]; Zuckerman v City of New York, 49 NY2d 557, 562 [1980]). Thefacts presented established, prima facie, that the plaintiff implicitly consented to thoseinjury-causing events which are inherent in the nature of the sport, that is, those events which areknown, apparent, or reasonably foreseeable consequences of the plaintiff's voluntaryparticipation such that the defendant is deemed to have discharged its duty of care (seegenerally Turcotte v Fell, 68 NY2d 432, 439 [1986]; Morgan v State of New York,90 NY2d 471, 484-486 [1997]). The evidence presented by the movant established that theconditions observed by the plaintiff upon entering the property were fully comprehended orperfectly obvious to the plaintiff (see Turcotte v Fell, 68 NY2d at 439) who testified athis deposition that he observed the sand and gravel mine, and its hills and constructionequipment, from approximately 100 feet above when he entered the property. The doctrine ofprimary assumption of risk is particularly applicable to the recreational activity of ATV riding onterrain such as an active sand and gravel mine (see Sedita v City of New York, 8 AD3d 256 [2004]; Schiavonev Brinewood Rod & Gun Club, 283 AD2d 234, 236-237 [2001]). As the name implies,all-terrain vehicle riders are no doubt attracted to the irregular nature of the terrain inherent in asand and gravel mine as opposed to the experience of riding on a paved surface (see Cotty vTown of Southampton, 64 AD3d 251 [2009];Schiavone v Brinewood Rod & Gun Club, 283 AD2d at 237).
In opposition to Pro Tek's prima facie showing, upon renewal, of its entitlement to judgmentas a matter of law, the plaintiff failed to raise a triable issue of fact as to whether the excavationof the side of the hill where his accident occurred was so unique as to create "a dangerouscondition over and above the usual dangers that are inherent in the sport" of ATV riding in anactive sand and gravel mine (Owen v R.J.S. Safety Equip., 79 NY2d 967, 970 [1992];see Schiavone v Brinewood Rod & Gun Club, 283 AD2d at 236).
In light of our determination, the plaintiff's remaining contentions either have been renderedacademic or are without merit. Skelos, J.P., Fisher, Leventhal and Lott, JJ., concur.