Opinion
2014-01-22
Cici FADER, etc., et al., appellants, v. TOWN OF OYSTER BAY, et al., respondents.
Rosenbaum & Faria, LLP (Sweetbaum & Sweetbaum, Lake Success, N.Y. [Marshall D. Sweetbaum], of counsel), for appellants. Burns, Russo, Tamigi & Reardon, LLP, Garden City, N.Y. (John T. Pieret of counsel), for respondents.
Rosenbaum & Faria, LLP (Sweetbaum & Sweetbaum, Lake Success, N.Y. [Marshall D. Sweetbaum], of counsel), for appellants. Burns, Russo, Tamigi & Reardon, LLP, Garden City, N.Y. (John T. Pieret of counsel), for respondents.
In an action to recover damages for personal injuries, etc., the plaintiffs appeal, as limited by their brief, from so much of an order of the Supreme Court, Nassau County (K.Murphy, J.), dated September 20, 2012, as granted the defendants' motion for summary judgment dismissing the complaint.
ORDERED that the order is reversed insofar as appealed from, on the law, with costs, and the defendants' motion for summary judgment dismissing the complaint is denied.
Those charged with supervising a skating rink cannot be held liable for an injury if the act precipitating the injury was so sudden that no amount of supervision could have averted the accident ( see Winkler v. County of Nassau, 56 A.D.3d 550, 550–551, 871 N.Y.S.2d 145; Gaspard v. Board of Educ. of City of N.Y., 47 A.D.3d 758, 759, 850 N.Y.S.2d 550; Tassielli v. United Skates of Am., Inc., 33 A.D.3d 908, 826 N.Y.S.2d 300; Shamelashvili v. City of New York, 262 A.D.2d 631, 692 N.Y.S.2d 695; Shorten v. City of White Plains, 224 A.D.2d 515, 637 N.Y.S.2d 791; Blashka v. South Shore Skating, 193 A.D.2d 772, 773, 598 N.Y.S.2d 74). Thus, where reckless behavior that is over and above the usual dangers inherent in the activity of skating is claimed to have caused the injury, the issue of whether the proprietor was negligent in supervising the skaters turns on whether the proprietor had sufficient notice of the allegedly reckless conduct so as to permit it to prevent the injury through the exercise of adequate supervision ( see Zambrana v. City of New York, 94 N.Y.2d 887, 888, 706 N.Y.S.2d 76, 727 N.E.2d 573). The duration and nature of the allegedly reckless conduct are factors that bear on this issue ( see Winkler v. County of Nassau, 56 A.D.3d at 550–551, 871 N.Y.S.2d 145; Williams v. Skate Key, 240 A.D.2d 277, 659 N.Y.S.2d 741; Shorten v. City of White Plains, 224 A.D.2d 515, 637 N.Y.S.2d 791; Nunez v. Recreation Rooms & Settlement, 229 A.D.2d 359, 360, 645 N.Y.S.2d 789).
Here, the defendants failed to establish, prima facie, their entitlement to judgment as a matter of law. The defendants' submissions failed to establish that the accident was precipitated by a sudden collision common to skating and not by reckless actions of another skater which the defendants could have prevented by exercising adequate supervision at the skating rink ( see Winkler v. County of Nassau, 56 A.D.3d at 550–551, 871 N.Y.S.2d 145; Shorten v. City of White Plains, 224 A.D.2d 515, 637 N.Y.S.2d 791). Since the defendants did not establish their prima facie entitlement to judgment as a matter of law, the Supreme Court should have denied the defendants' motion for summary judgment without considering the sufficiency of the plaintiffs' opposing papers ( see Alvarez v. Prospect Hosp., 68 N.Y.2d 320, 324, 508 N.Y.S.2d 923, 501 N.E.2d 572). BALKIN, J.P., LOTT, AUSTIN and MILLER, JJ., concur.