Opinion
2003-11409.
Decided June 14, 2004.
In an action to recover damages for personal injuries, the defendant appeals from an order of the Supreme Court, Nassau County (Burke, J.), dated November 26, 2003, which denied his motion for summary judgment dismissing the complaint.
Congdon, Flaherty, O'Callaghan, Reid, Donlon, Travis Fishlinger, Garden City, N.Y. (Kathleen D. Foley of counsel), for appellant.
Edelman, Krasin Jaye, PLLC, Carle Place, N.Y. (Seth I. Fields of counsel), for respondent.
Before: FRED T. SANTUCCI, J.P., SONDRA MILLER, ROBERT W. SCHMIDT, STEVEN W. FISHER, JJ.
DECISION ORDER
ORDERED that the order is reversed, on the law, with costs, the motion is granted, and the complaint is dismissed.
The plaintiff was injured when the defendant collided with her while downhill skiing at Shawnee Mountain in Pennsylvania. Without evidence of "reckless, intentional, or other risk-enhancing conduct not inherent in the activity" ( Kaufman v. Hunter Mtn. Ski Bowl, 240 A.D.2d 371, 372; see Zielinksi v. Farace, 291 A.D.2d 910, 911), a voluntary participant in a sport or recreational activity is deemed to have consented to the risk of injuries that are "known, apparent or reasonably foreseeable consequences of the participation" ( Turcotte v. Fell, 68 N.Y.2d 432, 439; see Morgan v. State of New York, 90 N.Y.2d 471, 484). While awareness or appreciation of such risks must be "assessed against the background of the skill and experience of the particular plaintiff" ( Benitez v. New York City Bd. of Educ., 73 N.Y.2d 650, 657; Turcotte v. Fell, supra; Maddox v. City of New York, 66 N.Y.2d 270, 278, "[t]he risk of injury caused by another skier is an inherent risk of downhill skiing" ( Zielinksi v. Farace, supra; see Kaufman v. Hunter Mtn. Ski Bowl, supra).
The defendant established his prima facie entitlement to judgment as a matter of law by demonstrating that he did not engage in any reckless or intentional conduct not inherent in the activity of downhill skiing that caused or contributed to the accident ( see Zielinksi v. Farace, supra; Kaufman v. Hunter Mtn. Ski Bowl, supra). In opposition, the plaintiff's submissions failed to raise a triable issue of fact. Her affidavit merely presented feigned issues of fact designed to avoid the consequences of her earlier deposition testimony ( see Broich v. Nabisco, Inc., 2 A.D.3d 474; Lincoln v. Laro Serv. Sys., 1 A.D.3d 487).
SANTUCCI, J.P., S. MILLER, SCHMIDT and FISHER, JJ., concur.