| Zayat Stables, LLC v NYRA, Inc. |
| 2011 NY Slip Op 06556 [87 AD3d 1063] |
| September 20, 2011 |
| Appellate Division, Second Department |
| Zayat Stables, LLC, Appellant, v NYRA, Inc.,Respondent. |
—[*1] Bee Ready Fishbein Hatter & Donovan, LLP, Mineola, N.Y. (Joshua M. Jemal of counsel),for respondent.
In an action, inter alia, to recover damages for injury to property, the plaintiff appeals, aslimited by its brief, from so much of an order of the Supreme Court, Queens County (Lane, J.),entered November 23, 2009, as granted the defendant's motion for summary judgment dismissingthe complaint.
Ordered that the order is reversed insofar as appealed from, on the law, with costs, and thedefendant's motion for summary judgment dismissing the complaint is denied.
On August 6, 2007, the plaintiff entered Phone Home, a thoroughbred racehorse it owned,into a race at Saratoga Race Course, which is operated by the defendant. While waiting in thestarting gate, Phone Home became fractious in his stall, causing his jockey, John Velazquez, todismount. According to Velazquez, as he mounted the horse again and prepared himself in thesaddle, he repeatedly told an assistant starter located inside the stall that he was not ready to startthe race. However, before Velazquez was able to get his right foot into the saddle's "irons," thegates opened, and Velazquez fell off the horse. Phone Home then sprinted riderless onto the trackand crashed into the outer rail, causing Phone Home to suffer injuries that required him to retirefrom racing. The plaintiff commenced this action against the defendant, alleging, inter alia, thatthe starting gate crew negligently caused the starting gate to open when Velasquez was not readyfor the start of the race.
The defendant moved for summary judgment dismissing the complaint on the ground that theplaintiff's claims were barred by the doctrine of primary assumption of the risk, arguing that theplaintiff assumed the risk of Phone Home's injury by placing him in the race. The plaintiff doesnot contend that the doctrine of primary assumption of the risk is inapplicable to actions torecover damages for injury to property, but argues that the conduct of the defendant's employeesunreasonably increased the risks that are inherent in the sport of thoroughbred racing. Assuming,without deciding, that the doctrine of assumption of the risk is applicable in actions to recoverdamages for injury to property, we conclude that the motion should have been denied because thedefendant failed to establish, prima facie, that the conduct of its employees did not unreasonablyincrease the usual risks that are inherent in the sport of thoroughbred racing (see Owen vR.J.S. Safety Equip., 79 NY2d 967, 969-970 [1992]; Winkler v County of Nassau, 56 AD3d 550, 550-551 [2008]; Rosati v Hunt [*2]Racing, Inc., 13 AD3d 1129, 1130 [2004]; Cruz v Cityof New York, 288 AD2d 250, 251 [2001]). Since the defendant did not establish its primafacie entitlement to judgment as a matter of law, it is unnecessary to consider the sufficiency ofthe plaintiff's opposing papers (see Alvarez v Prospect Hosp., 68 NY2d 320, 324 [1986]).Angiolillo, J.P., Florio, Lott and Austin, JJ., concur. [Prior Case History: 25 Misc 3d1230(A), 2009 NY Slip Op 52353(U).]