Opinion
63 CA 20-01128
04-30-2021
Amy L. ALEXANDER, Claimant-Respondent, v. STATE of New York, Defendant-Appellant. (Claim No. 131694.)
CONBOY, MCKAY, BACHMAN & KENDALL, LLP, WATERTOWN (DAVID B. GEURTSEN OF COUNSEL), FOR CLAIMANT-RESPONDENT. ROEMER WALLENS GOLD & MINEAUX LLP, ALBANY (MATTHEW J. KELLY OF COUNSEL), FOR DEFENDANT-APPELLANT.
CONBOY, MCKAY, BACHMAN & KENDALL, LLP, WATERTOWN (DAVID B. GEURTSEN OF COUNSEL), FOR CLAIMANT-RESPONDENT.
ROEMER WALLENS GOLD & MINEAUX LLP, ALBANY (MATTHEW J. KELLY OF COUNSEL), FOR DEFENDANT-APPELLANT.
PRESENT: SMITH, J.P., LINDLEY, NEMOYER, CURRAN, AND DEJOSEPH, JJ.
MEMORANDUM AND ORDER
It is hereby ORDERED that the order so appealed from is unanimously affirmed without costs.
Memorandum: Claimant commenced this action seeking damages for injuries that she sustained after she fell while participating in an obstacle course race at defendant's park. Defendant appeals from an order denying its motion for summary judgment dismissing the claim. We affirm.
Defendant contends that it established as a matter of law that it maintained the subject property in a reasonably safe condition under the circumstances and thus that the Court of Claims erred in denying its motion. As the party seeking summary judgment, defendant bore the initial burden of establishing as a matter of law that the defect that allegedly caused claimant's fall did not constitute a dangerous condition (see generally Wiedenbeck v. Lawrence , 170 A.D.3d 1669, 1669, 96 N.Y.S.3d 781 [4th Dept. 2019] ), that defendant did not create and lacked actual or constructive notice of the allegedly dangerous condition (see Parslow v. Leake , 117 A.D.3d 55, 63, 984 N.Y.S.2d 493 [4th Dept. 2014] ; see generally Gordon v. American Museum of Natural History , 67 N.Y.2d 836, 837-838, 501 N.Y.S.2d 646, 492 N.E.2d 774 [1986] ), or that the allegedly dangerous condition was not a proximate cause of claimant's fall (see Smith v. Szpilewski , 139 A.D.3d 1342, 1342-1343, 32 N.Y.S.3d 393 [4th Dept. 2016] ). Contrary to defendant's contention, we conclude that it failed to meet that burden.
" ‘[W]hether a dangerous or defective condition exists on the property of another so as to create liability depends on the peculiar facts and circumstances of each case’ ..., and the existence or nonexistence of a defect or dangerous condition ‘is generally a question of fact for the jury’ " ( Wiedenbeck , 170 A.D.3d at 1669, 96 N.Y.S.3d 781, quoting Trincere v. County of Suffolk , 90 N.Y.2d 976, 977, 665 N.Y.S.2d 615, 688 N.E.2d 489 [1997] ). Here, we conclude that defendant failed to establish as a matter of law that the defect that allegedly caused claimant's fall did not constitute a dangerous condition (see generally Beagle v. City of Buffalo , 178 A.D.3d 1363, 1366-1367, 116 N.Y.S.3d 122 [4th Dept. 2019] ). We also reject defendant's contention that it met its initial burden on the motion by establishing as a matter of law that claimant could not identify a specific defect that caused her fall without engaging in speculation. "It is well established ... that [a] moving party must affirmatively [demonstrate] the merits of its cause of action or defense and does not meet its burden by noting gaps in its opponent's proof" ( Lane v. Texas Roadhouse Holdings, LLC , 96 A.D.3d 1364, 1364, 946 N.Y.S.2d 339 [4th Dept. 2012] [internal quotation marks omitted]; see Brady v. City of N. Tonawanda , 161 A.D.3d 1526, 1527, 76 N.Y.S.3d 718 [4th Dept. 2018] ). Here, in support of the motion, defendant submitted, inter alia, claimant's testimony that she fell into a hidden rut that measured five inches deep by five inches wide and ran the length of the field, thereby rendering any other potential cause of her fall "sufficiently remote or technical to enable [a] jury to reach [a] verdict based not upon speculation, but upon the logical inferences to be drawn from the evidence" ( Artessa v. City of Utica , 23 A.D.3d 1148, 1148, 803 N.Y.S.2d 858 [4th Dept. 2005] [internal quotation marks omitted]; see Nolan v. Onondaga County , 61 A.D.3d 1431, 1432, 876 N.Y.S.2d 825 [4th Dept. 2009] ). Contrary to defendant's further contention, we conclude that it failed to meet its initial burden by establishing that it lacked constructive notice of the defect inasmuch as that "burden cannot be satisfied merely by pointing out gaps in [claimant's] case, as ... defendant did here" ( Baines v. G&D Ventures, Inc. , 64 A.D.3d 528, 529, 883 N.Y.S.2d 256 [2d Dept. 2009] ).
Additionally, defendant contends that the court erred in denying its motion because claimant's claim is barred by the doctrine of assumption of the risk. It is well settled that "[a claimant] will not be held to have assumed those risks that are not inherent ..., i.e., not ordinary and necessary in the sport" ( Lamey v. Foley , 188 A.D.2d 157, 164, 594 N.Y.S.2d 490 [4th Dept. 1993] [internal quotation marks omitted]; see Wyzykowski v. State of New York , 162 A.D.3d 1705, 1706, 80 N.Y.S.3d 588 [4th Dept. 2018] ). Here, although the risk of falling while running an obstacle course race is " ‘inherent in and arise[s] out of the nature of the sport generally’ " ( Custodi v. Town of Amherst , 20 N.Y.3d 83, 88, 957 N.Y.S.2d 268, 980 N.E.2d 933 [2012], quoting Morgan v. State of New York , 90 N.Y.2d 471, 484, 662 N.Y.S.2d 421, 685 N.E.2d 202 [1997] ; see Litz v. Clinton Cent. Sch. Dist. , 126 A.D.3d 1306, 1309-1310, 5 N.Y.S.3d 636 [4th Dept. 2015] ), we conclude that the evidence submitted by defendant in support of its motion failed to establish that the alleged defect was inherent in the sport (cf. Sykes v. County of Erie , 94 N.Y.2d 912, 913, 707 N.Y.S.2d 374, 728 N.E.2d 973 [2000] ; see generally Morgan , 90 N.Y.2d at 488, 662 N.Y.S.2d 421, 685 N.E.2d 202 ). Contrary to defendant's final contention, under the circumstances presented here, claimant's awareness of the generally poor condition of the race course and her decision to participate in the race relate only to the issue of her comparative fault, if any (see Wyzykowski , 162 A.D.3d at 1706, 80 N.Y.S.3d 588 ).