| Reidy v Raman |
| 2011 NY Slip Op 05251 [85 AD3d 892] |
| June 14, 2011 |
| Appellate Division, Second Department |
| Catherine R. Reidy et al., Appellants, v Jeff S. Raman etal., Respondents. |
—[*1] Fogarty & Duffy, P.C., Mineola, N.Y. (Patrick J. Fogarty of counsel), for respondents Jeff S.Raman and One Stop Party Rental, Inc. Cruser, Mitchell & Novitz, Melville, N.Y. (Beth S. Gereg of counsel), for respondentLindenhurst Sport Club, Inc.
In an action to recover damages for personal injuries, etc., the plaintiffs appeal from an orderof the Supreme Court, Suffolk County (Jones, Jr., J.), dated March 11, 2010, which granted theseparate motions of the defendants Jeff S. Raman and One Stop Party Rental, Inc., and thedefendant Lindenhurst Sport Club, Inc., for summary judgment dismissing the complaint insofaras asserted against each of them.
Ordered that the order is affirmed, with one bill of costs payable to the respondents appearingseparately and filing separate briefs.
The plaintiff Catherine R. Reidy injured her ankle while sliding down an inflatable slideowned by the defendant One Stop Party Rental, Inc., and erected at an event sponsored by thedefendant Lindenhurst Sport Club, Inc. (hereinafter LSC). The injured plaintiff and her husband,suing derivatively, commenced this action against One Stop Party Rental, Inc., and Jeff S.Raman, its owner (hereinafter together One Stop), and LSC. One Stop and LSC separately movedfor summary judgment dismissing the complaint insofar as asserted against each of them on theground, inter alia, that the action was barred by the doctrine of assumption of risk. The SupremeCourt granted the motions. We affirm.
"A plaintiff is barred from recovery for injuries which occur during voluntary sporting orrecreational activities if it is determined that he or she assumed the risk as a matter of law" (Leslie v Splish Splash atAdventureland, 1 AD3d 320, 321 [2003]; see Morgan v State of New York, 90NY2d 471 [1997]). A voluntary participant in a recreational activity consents to thosecommonly-appreciated risks which are inherent in and arise out of the nature of such activitygenerally, and which flow from the participation (see Morgan v State of New York, 90NY2d at 484; Leslie v Splish Splash at Adventureland, 1 AD3d at 321). "[A]thletic andrecreative activities possess enormous social value, even while they involve [*2]significantly heightened risks . . . these risks may bevoluntarily assumed to preserve these beneficial pursuits as against the prohibitive liability towhich they would otherwise give rise" (Trupia v Lake George Cent. School Dist., 14 NY3d 392, 395[2010]).
One Stop and LSC demonstrated their prima facie entitlement to judgment as a matter of lawby presenting evidence that the injured plaintiff understood and voluntarily assumed the risksinherent in the activity at issue (see Leslie v Splish Splash at Adventureland, 1 AD3d at321; cf. Trupia v Lake George Cent.School Dist., 14 NY3d 392 [2010]). In opposition, the plaintiffs failed to raise a triableissue of fact. Contrary to the plaintiffs' contention, they did not raise a triable issue of fact as tothe existence of a dangerous condition over and above the risk inherent in the subject activity(see Leslie v Splish Splash at Adventureland, 1 AD3d at 321; Loewenthal v CatskillFunland, 237 AD2d 262, 263 [1997]). Furthermore, the plaintiffs' expert report and affidavitsubmitted in opposition to the motions did not raise a triable issue of fact because the expert wasnot qualified to render an opinion as to the condition of the inflatable slide (see Kasner v Pathmark Stores, Inc., 18AD3d 440, 441 [2005]). In any event, the expert's conclusions were speculative (seeLeslie v Splish Splash at Adventureland, 1 AD3d at 321; Van Skyock v BurlingtonN.-Santa Fe Co., 265 AD2d 545, 546 [1999]).
Accordingly, the Supreme Court properly granted the separate motions of One Stop and LSCfor summary judgment dismissing the complaint insofar as asserted against each of them. Dillon,J.P., Balkin, Leventhal and Hall, JJ., concur.