Opinion
# 2019-050-011 Claim No. 129377 Motion No. M-92863
03-22-2019
RITA PAULINO v. THE STATE OF NEW YORK
Finz & Finz, P.C. By: Benjamin P. Jacobs, Esq. Hon. Letitia James, Attorney General By: Kimberly A. Kinirons, Assistant Attorney General
Synopsis
Defendant's motion for summary judgment is granted and the claim is dismissed. Claimant assumed the risk of riding a bicycle through a narrow opening on unpaved ground to evade a closed gate with a prominently displayed stop sign.
Case information
| UID: | 2019-050-011 |
| Claimant(s): | RITA PAULINO |
| Claimant short name: | PAULINO |
| Footnote (claimant name) : | |
| Defendant(s): | THE STATE OF NEW YORK |
| Footnote (defendant name) : | |
| Third-party claimant(s): | |
| Third-party defendant(s): | |
| Claim number(s): | 129377 |
| Motion number(s): | M-92863 |
| Cross-motion number(s): | |
| Judge: | STEPHEN J. LYNCH |
| Claimant's attorney: | Finz & Finz, P.C. By: Benjamin P. Jacobs, Esq. |
| Defendant's attorney: | Hon. Letitia James, Attorney General By: Kimberly A. Kinirons, Assistant Attorney General |
| Third-party defendant's attorney: | |
| Signature date: | March 22, 2019 |
| City: | Hauppauge |
| Comments: | |
| Official citation: | |
| Appellate results: | |
| See also (multicaptioned case) |
Decision
Claimant seeks damages for personal injuries sustained in a bicycling accident that occurred on a paved bike path which is owned and maintained by the defendant. Discovery has concluded and a note of issue has been filed in this matter. Defendant now moves for summary judgment dismissing the claim. Claimant opposes the motion.
The claim herein alleges that on Sunday, August 21, 2016, claimant was on a recreational bicycle ride with approximately ten to twelve other cyclists. Claimant testified that she had been riding her mountain bike with this cycling group for several months. The weather was clear and dry and it was daylight. At approximately 4:30 p.m. the group had just crossed a two-lane road and, still riding their bicycles and once again on the bike path, approached the entrance to the Bethpage State Park. Claimant stated that as the group approached the entrance they saw that it was blocked by a metal gate with a red stop sign affixed to the middle of the gate. The riders did not stop riding and did not discuss whether they should enter the park when the bike path was closed. They did not stop to check whether the gate was locked. Instead, they rode off the paved bike path and around the gate through a narrow space between the gate and a chain link fence which ran parallel to the paved bike path. The space was estimated by claimant to be around three feet wide. Claimant followed approximately eight riders in riding off the bike path; those ahead of her successfully negotiated the narrow space. Claimant's left handlebar, however, "clipped the post" of the gate as she rode through, which caused her to fall and sustain injuries.
The testimony of James Semar, assistant director at the Bethpage State Park, established that the gates at the entrances to the park were opened and closed on a daily basis. He testified that although the park was generally open during daylight hours, it was in fact closed on the Sunday of claimant's accident because the park was hosting The Barclays professional golf tournament. He stated that because the park was closed to the public all gates would have been closed and locked. He did not recall any signs having been placed at the bike path park entrances stating the park was closed for the golf tournament. He stated that the gate would have been closed and locked that Friday evening at sunset and remained closed and locked for the duration of the closure of the park that weekend.
Upon a motion for summary judgment, the initial burden is on the moving party to come forward with proof in admissible form showing its entitlement to judgment as a matter of law (see Zuckerman v City of New York, 49 NY2d 557 [1980]). When considering a motion for summary judgment, the initial test is whether the movant established prima facie entitlement to judgment as a matter of law (see Alvarez v Prospect Hosp., 68 NY2d 320 [1986]). "Once this showing has been made . . . the burden shifts to the party opposing the motion . . . to produce evidentiary proof in admissible form sufficient to establish the existence of material issues of fact which require a trial" (Sonne v Bd. of Trustees of Vil. of Suffern, 67 AD3d 192 [2d Dept 2009], internal quotation and citation omitted). The evidence submitted in support of a motion for summary judgment must be viewed in the light most favorable to the non-moving party, giving that party the benefit of any favorable inference (see Open Door Foods, LLC v Pasta Machines, Inc., 136 AD3d 1002 [2d Dept 2016]).
For claimant to prevail at trial, she is required to establish that: (1) a dangerous condition existed; (2) the defendant State either created said dangerous condition or had actual or constructive notice thereof and failed to alleviate that condition within a reasonable time; (3) said dangerous condition was a proximate cause of the accident; and, (4) claimant sustained damages (see Gordon v American Museum of Natural History, 67 NY2d 836 [1986]; Mercer v City of New York, 223 AD2d 688 [2d Dept 1996], aff'd 88 NY2d 955 [1996]). "Although the question of whether a condition is hidden or open and obvious is generally for the finder of fact to determine, the court may determine that a risk is open and obvious as a matter of law where clear and undisputed evidence compels such a conclusion" (Capasso v Vil. of Goshen, 84 AD3d 998 [2d Dept 2011]).
The State of New York has the same duty applicable to all property owners, that is to keep its premises in a reasonably safe condition given all of the prevailing circumstances (see Preston v State of New York, 59 NY2d 997 [1983]; Seetaram v State of New York, 146 AD3d 916 [2d Dept 2017]). The scope of this duty may also include the duty to warn of a dangerous condition, however, a landowner is not obligated to warn against conditions on its property that could be readily observed by the use of one's senses (Tagle v Jakob, 97 NY2d 165 [2001]; Cupo v Karfunkel, 1 AD3d 48 [2d Dept 2003]). The State is not the insurer of the safety of those on its property (see Covington v State of New York, 54 AD3d 1137 [3d Dept 2008]). Additionally, an "invitation to use a public park is not an absolute one. It is rather an invitation to use the facilities of the park in the manner in which and for the purposes for which they were designated and intended" (Arsenault v State of New York, 96 AD3d 97 [3d Dept 2012], citing Pope v State of New York, 198 Misc. 31 [Ct Cl 1950], aff'd 277 AD 1157 [4th Dept 1950]).
Defendant initially argues that the space off the bike path between the gate and the fence was not an inherently dangerous condition. Defendant further argues that claimant assumed the risks inherent in riding her bicycle off the paved bike path and through a narrow opening to evade the gate which barred entrance to the park.
Here, the essential facts are undisputed. The entrance to the park was blocked due to the park being closed to the public that day. Claimant saw the closed gate and the stop sign as she approached. She assumed the gate closure was an error. Without stopping, she chose to ride off the paved bike path and not to dismount her bike while evading the gate - despite an admitted awareness that the opening was narrow. Claimant's decision to leave the paved bicycle path and attempt to ride through a narrow opening between a metal gate and a metal fence - an opening which was not intended to be an entrance - caused her to "clip" her left handlebar on the gate and lose control of her bicycle. This loss of control caused her to fall and suffer injury.
"A claimant has the duty to use reasonable care to observe his or her surroundings, to see what is there to be seen, and to avoid accidents" (Panebianco v State of New York, 38 Misc 3d 1218 (A) [Ct Cl 2012], citations omitted). The testimony of the parties as well as the photographs of the scene of the accident make clear that the opening where claimant fell was not an inherently dangerous condition, and in any event, it was open and obvious that the space was narrow and not intended for bicycle traffic. To be open and obvious a condition "must be one that could not be overlooked by any observer reasonably using his or her ordinary senses" (Arsenault v State of New York, 96 AD3d 97 [3d Dept 2012], citation omitted).
Additionally, even assuming, arguendo, that the Court were to find that the opening between the gate and the fence constituted a dangerous condition, the doctrine of assumption of risk would nevertheless bar claimant's recovery of damages from the State. "Under the doctrine of primary assumption of risk, a person who voluntarily participates in a sporting or recreational activity generally consents, by his or her participation, to those injury-causing events, conditions, and risks which are inherent in and arise out of the nature of the activity" (Mamati v City of New York Parks & Recreation, 123 AD3d 671 [2d Dept 2014]). Risks inherent in a sporting activity are those which are known, apparent, natural, or reasonably foreseeable consequences of the participation (see Morgan v State of New York, 90 NY2d 471 [1997]; Custodi v Town of Amherst, 20 NY3d 83 [2012]). "It is not necessary to the application of assumption of risk that the injured plaintiff have foreseen the exact manner in which his or her injury occurred, so long as he or she is aware of the potential for injury of the mechanism from which the injury results" (Philius v City of New York, 161 AD3d 787 [2d Dept 2018], appeal withdrawn, 32 NY3d 1108 [2018], citing Maddox v City of New York, 66 NY2d 278 [1985]). "If the risks of the activity are fully comprehended or perfectly obvious, plaintiff has consented to them and defendant has performed its duty" (Turcotte v Fell, 68 NY2d 432 [1986]).
Here, the risks of riding a bicycle off the paved bike path and through a narrow opening are open and obvious and the Court finds that claimant assumed those risks. Further, the existence of the opening was neither an inherently dangerous condition nor a proximate cause of claimant's injuries. Rather, claimant's own actions, and not any negligence on the State's part, caused her injuries. Defendant has thus made its prima facia case as a matter of law and the burden shifts to claimant to demonstrate that an issue of fact remains necessitating a trial.
In her opposition, claimant argues that an issue of fact remains as to whether the narrow opening constituted an inherently dangerous condition and whether the risk was open and obvious to riders following in a group with limited time to observe and assess the "side entrance." Further, claimant argues that the worn area on the ground between the gate and the fence demonstrates that people were using the opening as an entrance and creates another question of fact as to whether the State had notice that people were using the opening as an entrance. These arguments are unavailing. As discussed above, the State is not an insurer against every accident and it had made the bike path entrance as safe as it appeared to be. Claimant assumed the risk of riding a bicycle through a narrow opening on unpaved ground to evade a closed gate with a prominently displayed stop sign. Defendant cannot be held liable for that decision and its resultant injury.
For the foregoing reasons, defendant's motion for summary judgment is granted and the claim is dismissed.
March 22, 2019
Hauppauge, New York
STEPHEN J. LYNCH
Judge of the Court of Claims The following papers were read and considered by the Court on defendant's motion for summary judgment: 1. Notice of Motion, Affirmation in Support with Exhibits. 2. Affirmation in Opposition with Exhibits. 3. Reply Affirmation.