Opinion
2016–06971 2016–11674 Index No. 56545/15
11-14-2018
Alexander BARON, Appellant, v. SOUTHEAST SPORTS COMPLEX, LLC, et al., Respondents.
Scott Baron & Associates, P.C., Yonkers, N.Y. (Michael Stieglitz and Bruce Baron of counsel), for appellant. Chesney & Nicholas, LLP, Syosset, N.Y. (Henry D. Nelkin of counsel), for respondents.
Scott Baron & Associates, P.C., Yonkers, N.Y. (Michael Stieglitz and Bruce Baron of counsel), for appellant.
Chesney & Nicholas, LLP, Syosset, N.Y. (Henry D. Nelkin of counsel), for respondents.
REINALDO E. RIVERA, J.P., CHERYL E. CHAMBERS, BETSY BARROS, VALERIE BRATHWAITE NELSON, JJ.
DECISION & ORDER
ORDERED that the order dated June 16, 2016, is affirmed; and it is further,
ORDERED that the order dated October 18, 2016, is affirmed insofar as appealed from; and it is further,
ORDERED that one bill of costs is awarded to the defendants.
The plaintiff, while practicing ice hockey with two teammates at an outdoor ice skating facility owned by the defendant Southeast Sports Complex, LLC, allegedly was injured when he fell due to a divot in the ice. The plaintiff, who was a member of his school's ice hockey team and had been ice skating for many years, testified at his deposition that the accident occurred on a warm day and that there were puddles of water on the ice surface.
The defendants established their prima facie entitlement to judgment as a matter of law by demonstrating that the plaintiff, an experienced ice skater, voluntarily continued to skate despite the allegedly defective condition of the skating rink surface, and thus assumed the risk (see Morgan v. State of New York , 90 N.Y.2d 471, 662 N.Y.S.2d 421, 685 N.E.2d 202 ; Stanger v. M & T Pretzel , 5 A.D.3d 471, 772 N.Y.S.2d 571 ; Rensing v. Iceland, Inc. , 276 A.D.2d 614, 714 N.Y.S.2d 899 ; Saravia v. Makkos of Brooklyn , 264 A.D.2d 576, 694 N.Y.S.2d 393 ). In opposition, the plaintiff failed to raise a triable issue of fact. Therefore, we agree with the Supreme Court's determination granting the defendants' motion for summary judgment dismissing the complaint.
Moreover, we agree with the Supreme Court's determination denying that branch of the plaintiff's motion which was for leave to renew his opposition to the defendant's motion. The plaintiff failed to proffer any new facts which would have changed the court's prior determination (see CPLR 2221[e][3] ).
RIVERA, J.P., CHAMBERS, BARROS and BRATHWAITE NELSON, JJ., concur.