Opinion
No. 2021-08411
02-21-2024
Victor Alfieri, appellant, v. State of New York, respondent. (Claim No. 128696)
Neimark Coffinas & Lapp LLP, New City, NY (George G. Coffinas of counsel), for appellant. Letitia James, Attorney General, New York, NY (Judith N. Vale and David Lawrence III of counsel), for respondent.
Neimark Coffinas & Lapp LLP, New City, NY (George G. Coffinas of counsel), for appellant.
Letitia James, Attorney General, New York, NY (Judith N. Vale and David Lawrence III of counsel), for respondent.
VALERIE BRATHWAITE NELSON, J.P. ROBERT J. MILLER DEBORAH A. DOWLING LILLIAN WAN, JJ.
DECISION & ORDER
In a claim to recover damages for personal injuries, the claimant appeals from a judgment of the Court of Claims (Ramòn E. Rivera, J.), dated October 28, 2021. The judgment, upon a decision of the same court dated September 24, 2021, made after a trial, is in favor of the defendant and against the claimant dismissing the claim.
ORDERED that the judgment is reversed, on the law and the facts, with costs, and the matter is remitted to the Court of Claims for further proceedings in accordance herewith.
In October 2016, the claimant commenced this claim to recover damages for personal injuries he allegedly sustained when he fell from his bicycle as he rode on the paved path around Rockland Lake in Rockland Lake State Park. At a nonjury trial, the claimant testified that he fell when his bicycle ran into loose asphalt at the end of a crack in an asphalt patch as he attempted to maneuver to the edge of the path to go around two people walking on the path.
After the trial, the Court of Claims found that the claim was barred by the doctrine of primary assumption of risk. Thereafter, the court issued a judgment dismissing the claim. The claimant appeals.
This Court's authority when reviewing a determination made after a nonjury trial "is as broad as that of the trial court, and this Court may render the judgment it finds warranted by the facts, taking into account in a close case the fact that the trial judge had the advantage of seeing and hearing the witnesses" (Superior Vending Servs., Inc. v Workmen's Circle Home & Infirmary Found. for the Aged, N.Y. State Branches, Inc., 148 A.D.3d 960, 961 [internal quotation marks omitted]; see Northern Westchester Professional Park Assoc. v Town of Bedford, 60 N.Y.2d 492). Under the doctrine of primary assumption of risk, a voluntary participant in a sport or recreational activity is deemed to have consented to those "commonly appreciated risks which are inherent in and arise out of the nature of the sport generally and flow from such participation" (Morgan v State of New York, 90 N.Y.2d 471, 484; see Custodi v Town of Amherst, 20 N.Y.3d 83, 88; Cotty v Town of Southampton, 64 A.D.3d 251, 253-254). "Risks inherent in a sporting activity are those which are known, apparent, natural, or reasonably foreseeable consequences of... participation" (Mamati v City of N.Y. Parks & Recreation, 123 A.D.3d 671, 672; see Morgan v State of New York, 90 N.Y.2d 471; Turcotte v Fell, 68 N.Y.2d 432). "As a general rule, application of assumption of the risk should be limited to cases appropriate for absolution of duty, such as personal injury claims arising from sporting events, sponsored athletic and recreative activities, or athletic and recreational pursuits that take place at designated venues" (Custodi v Town of Amherst, 20 N.Y.3d at 89).
Here, the Court of Claims erred in determining that the path where the claimant's accident occurred was a designated venue used specifically for bicycling. When the injury occurred, the claimant was engaged in a recreational bicycle ride on a paved, public surface. The claimant was not participating in an organized group event or sponsored ride. The claimant testified at trial that he could both bike and walk the path. That, in addition to the presence of pedestrians who precipitated the accident, demonstrated that the path was for public use, and not a designated venue for bicycling. Therefore, the claimant, by participating in recreational bicycling, cannot be said to have assumed the risk of being injured as a result of an alleged defective condition on the paved path, and therefore, the doctrine of primary assumption of risk is inapplicable to the claimant's activity (see Cotty v Town of Southampton, 64 A.D.3d at 255-257; Caraballo v City of Yonkers, 54 A.D.3d 796, 796-797; Phillips v County of Nassau, 50 A.D.3d 755, 757; Moore v City of New York, 29 A.D.3d 751, 751-752; Vestal v County of Suffolk, 7 A.D.3d 613, 614-615).
Accordingly, the Court of Claims erred in awarding a judgment in favor of the defendant and dismissing the claim based on the doctrine of primary assumption of risk, and the matter must be remitted to it for a decision on those issues left undecided as a result of its determination (see McGowan v State of New York, 41 A.D.3d 670, 672; Zuckerman v State of New York, 209 A.D.2d 510, 512).
BRATHWAITE NELSON, J.P., MILLER, DOWLING and WAN, JJ., concur.