Opinion
# 2016-031-089 Claim No. 125390 Motion No. M-88520
11-21-2016
MARY WYZYKOWSKI v. THE STATE OF NEW YORK
BROWN CHIARI, LLP BY: ANGELO S. GAMBINO, ESQ. ERIC T. SCHNEIDERMAN New York State Attorney General BY: TAMARA B. CHRISTIE, ESQ. Assistant Attorney General
Synopsis
Defendant has demonstrated that its maintenance of the ice surface of skating rink was reasonable and that it had no notice of a defective condition on the ice surface. In response, Claimant failed to demonstrate that a defective condition existed, or if one did, that Defendant created or had notice of such condition.
Case information
| UID: | 2016-031-089 |
| Claimant(s): | MARY WYZYKOWSKI |
| Claimant short name: | WYZYKOWSKI |
| Footnote (claimant name) : | |
| Defendant(s): | THE STATE OF NEW YORK |
| Footnote (defendant name) : | The caption has been amended sua sponte to reflect the proper Defendant in this matter. |
| Third-party claimant(s): | |
| Third-party defendant(s): | |
| Claim number(s): | 125390 |
| Motion number(s): | M-88520 |
| Cross-motion number(s): | |
| Judge: | RENÉE FORGENSI MINARIK |
| Claimant's attorney: | BROWN CHIARI, LLP BY: ANGELO S. GAMBINO, ESQ. |
| Defendant's attorney: | ERIC T. SCHNEIDERMAN New York State Attorney General BY: TAMARA B. CHRISTIE, ESQ. Assistant Attorney General |
| Third-party defendant's attorney: | |
| Signature date: | November 21, 2016 |
| City: | Rochester |
| Comments: | |
| Official citation: | |
| Appellate results: | |
| See also (multicaptioned case) |
Decision
In addition to hearing oral argument from counsel, the following papers, numbered 1 to 9, were read on motion by Defendant for summary judgment dismissing the claim:
1. Defendant's Notice of Motion, filed May 6, 2016;
2. Affirmation of Tamara B. Christie, Esq., dated May 5, 2016, with exhibits;
3. Defendant's Memorandum of Law, dated May 5, 2016;
4. Affidavit of Angelo S. Gambino, Esq., sworn to July 19, 2016, with exhibits;
5. Affidavit of Kevin Dellapenta, sworn to July 15, 2016;
6. Claimant's Memorandum of Law, received July 20, 2016;
7. Reply Affirmation of Tamara B. Christie, Esq., dated August 10. 2016;
8. Defendant's Reply Memorandum of Law, dated August 10, 2016, with attachments;
9. Filed documents: Claim and Answer.
I have before me Defendant's motion for summary judgment dismissing the claim. In her claim, filed on December 15, 2014, Mary Wyzykowski alleges that on November 9, 2013, she was injured in a slip and fall while ice skating at the Tuttle North Ice Arena on The College at Brockport State University of New York campus. She sustained a fracture of her humerus that required surgical repair. She alleges that the State was negligent in failing to properly inspect and maintain the ice on the day of her accident.
In support of its motion, Defendant has submitted the deposition transcripts of Tod Brudz and James Stedman, both of whom are employed by Defendant as supervisors at the Tuttle North Ice Arena. Mr. Brudz operated Defendant's Zamboni before the accident and Mr. Stedman operated the Zamboni at the time of the accident. Both of these individuals stated that they performed proper maintenance on the ice surface and that no problem with the ice was noticed or reported either before or after the accident. They did state however, that the Zamboni's auger had frozen up earlier on the day of the accident. When this occurs shavings are not properly collected and can spread onto the ice causing dangerous conditions. However, they stated that they were aware of this problem and had resurfaced the ice with the Zamboni twice after the auger had malfunctioned (at 1:10 p.m. and 2:45 p.m.). They testified that, on each of these subsequent occasions, the Zamboni worked properly, the auger did not freeze and the ice was in good condition. Mr. Stedman also testified there was no problem with the ice after Claimant's fall and that no other patrons were injured or complained about the ice surface conditions.
In response to Defendant's motion, Claimant has offered the Affidavit of Kevin Dellapenta, an individual with 28 years of experience operating a Zamboni, the last 19 of which have been for the professional hockey team the Buffalo Sabres. Mr. Dellapenta maintains the ice rink for the Sabres and asserts that he is familiar with the operation, maintenance and repair of both Zambonis and ice rinks. Mr. Dellapenta opined that: 1) the fact that the Zamboni's auger had frozen up previously indicated that Defendant's Zamboni was not properly maintained; 2) the Zamboni operator should have reported the malfunctioning Zamboni and/or used a different one on the day of the accident; and 3) the auger freezing up meant that ice chips were deposited on the ice leading to a bumpy slushy condition, as described by Claimant. Claimant argues that Mr. Dellapenta's affidavit creates a question of fact concerning whether or not Defendant failed to properly maintain the Zamboni, or replace it with another, thereby creating a dangerous ice condition on which the Claimant slipped and fell. Accordingly, Claimant argues that Defendant's summary judgment motion should be denied.
Summary judgment is a drastic remedy which should not be granted unless it is clear that there are no triable issues of fact (see Andre v Pomeroy, 35 NY2d 361 [1974]). The Court's function in a motion for summary judgment is not to resolve issues of fact, but to determine whether issues of fact exist (see Barr v County of Albany, 50 NY2d 247 [1980]). The proponent of a motion for summary judgment must make a showing of prima facie entitlement to judgment as a matter of law, tendering sufficient evidence to demonstrate the absence of any material issues of fact (see Alvarez v Prospect Hosp., 68 NY2d 320 [1986]). Failure to make such a showing requires denial of a summary judgment motion, regardless of the sufficiency of the opposing party's papers (see Winegrad v New York Univ. Med. Ctr., 64 NY2d 851, 853 [1985]). Once this showing has been made, the burden shifts to the opponent of the motion to produce evidentiary proof, in admissible form, sufficient to establish the existence of material issues of fact which require a trial of the action (see Alvarez, 68 NY2d at 324; Zuckerman v City of New York, 49 NY2d 557, 562 [1980]). The evidence must be viewed in the light most favorable to the opponent of the motion, and that party should be given every favorable inference (see McKinnon v Bell Sec., 268 AD2d 220 [1st Dept 2000]).
Defendant argues that Claimant assumed the risk of falling, which is inherent in the sport of ice skating. With regard to Claimant's choice to participate in the ice skating on the day of the accident, both parties agree with the Court of Appeals' statement in Morgan v State of New York, (90 NY2d 471, 484 [1997]) that "by engaging in a sport or recreational activity, a participant consents to those commonly appreciated risks which are inherent in and arise out of the nature of the sport generally and flow from such participation."
Claimant argues, however, that based upon Mr. Dellapenta's affidavit, Claimant did not consent to skating on the defective ice which was created by Defendant's negligent maintenance of the Zamboni. Although Defendant argues that Claimant's expert's entire affidavit should be disregarded, I find that Mr. Dellapenta clearly qualifies as an expert with regard to operating a Zamboni, and his testimony (which did not differ from that of Defendant's witnesses) that a frozen auger can lead to poor ice conditions is accepted by the Court. However, I agree with Defendant that Mr. Dellapenta's testimony concerning the existence and creation of the alleged defect that caused Claimant to fall lacks sufficient foundation and is speculative. The testimony of Mr. Brudz and Mr. Stedman demonstrated that, after the auger froze, the ice was resurfaced two more times and that the auger worked properly on each of those occasions. Mr. Dellapenta provided no basis for his assumption that the Zamboni, nonetheless, created the alleged hazard, and he provided no industry standards or guidelines to support his opinion that the Zamboni should not have been used, or that it could not appropriately resurface the ice with the auger working properly. His opinion in this regard, accordingly, has no probative value (Di Sanza v City of New York, 11 NY3d 766 [2008]; Romano v Stanley, 90 NY2d 444 [1997]).
Further, as Defendant has pointed out, even if a dangerous condition existed on the ice, the doctrine of primary assumption of the risk still applies if the condition was open and obvious, was appreciated by Claimant, and Claimant nonetheless continued to skate (Turcotte v Fell, 68 NY2d 432, [1986]; Rossman v RCPI Landmark Props., L.L.C., 41 AD3d 318 [1st Dept 2007]; Josefs v State of New York, UID No. 2006-029-588 [Ct Cl, Mignano, J., July 5, 2006]). Claimant's deposition testimony demonstrated that she was aware of the allegedly dangerous condition on the ice, yet she chose to continue skating.
Based upon the foregoing, it is ORDERED, that Defendant's motion for summary judgment is GRANTED, and the claim is dismissed in its entirety.
November 21, 2016
Rochester, New York
RENÉE FORGENSI MINARIK
Judge of the Court of Claims