Opinion
185.
Decided September 13, 2005.
Appeal from an order of the Appellate Division of the Supreme Court in the Fourth Judicial Department, entered April 29, 2005. The Appellate Division, with two Justices dissenting, (1) reversed, on the law, an order of the Supreme Court, Erie County (Peter J. Notaro, J.), which had denied defendant's motion for summary judgment dismissing the complaint, (2) granted defendant's motion and (3) dismissed the complaint.
Plaintiffs commenced this negligence action seeking damages for injuries plaintiff Michael Bennett sustained while downhill skiing on defendant's premises.
The Appellate Division majority concluded that defendant had met its initial burden on its summary judgment motion by submitting evidence establishing, as a matter of law, that the accident was caused by variations in terrain and ice, inherent risks in the sport; that there was no basis in the record for plaintiff's expert's assertion that the purpose of a fence bordering a gully, under which plaintiff slid, was a barrier, rather than a warning to skiers, delineating the edge of the gully; and that plaintiffs failed to submit evidence sufficient to raise an issue of fact whether defendant created a dangerous condition over and above the usual dangers inherent in the sport.
Bennett v. Kissing Bridge Corp., 17 AD3d 990, affirmed.
Smith, Keller, Miner O'Shea, Buffalo ( Philip J. O'Shea, Jr., of counsel), for appellants.
Damon Morey LLP, Buffalo ( Brian A. Birenbach of counsel), for respondent.
Before: Chief Judge KAYE and Judges G.B. SMITH, CIPARICK, ROSENBLATT, GRAFFEO, READ and R.S. SMITH concur.
OPINION OF THE COURT
On review of submissions pursuant to section 500.11 of the Rules of the Court of Appeals ( 22 NYCRR 500.11), order affirmed, with costs, for the reasons stated in the memorandum of the Appellate Division ( 17 AD3d 990).