Opinion
2021-03581 Index 6987/16
06-09-2021
Marco Makabali, appellant, v. John Chilelli, et al., respondents.
Bergman, Bergman, Fields & Lamonsoff, LLP, Hicksville, NY (Michael E. Bergman, Julie T. Mark, and Seth Fields of counsel), for appellant. Baxter Smith & Shapiro, P.C., Hicksville, NY (Arthur J. Smith and Louis B. Dingeldey, Jr., of counsel), for respondent John Chilelli. Renzulli Law Firm, LLP, White Plains, NY (Howard B. Schilsky and Christopher Renzulli of counsel), for respondent Long Island Practical Shooters, Inc.
Bergman, Bergman, Fields & Lamonsoff, LLP, Hicksville, NY (Michael E. Bergman, Julie T. Mark, and Seth Fields of counsel), for appellant.
Baxter Smith & Shapiro, P.C., Hicksville, NY (Arthur J. Smith and Louis B. Dingeldey, Jr., of counsel), for respondent John Chilelli.
Renzulli Law Firm, LLP, White Plains, NY (Howard B. Schilsky and Christopher Renzulli of counsel), for respondent Long Island Practical Shooters, Inc.
CHERYL E. CHAMBERS, J.P. ROBERT J. MILLER BETSY BARROS LINDA CHRISTOPHER, JJ.
DECISION & ORDER
In an action to recover damages for personal injuries, the plaintiff appeals from an order of the Supreme Court, Nassau County (Julianne T. Capetola, J.), dated December 10, 2018. The order, insofar as appealed from, granted the motion of the defendant John Chilelli for summary judgment dismissing the complaint insofar as asserted against him, and granted that branch of the motion of the defendant Long Island Practical Shooters, Inc., which was for summary judgment dismissing the complaint insofar as asserted against it.
ORDERED that the order is affirmed insofar as appealed from, with one bill of costs.
The plaintiff was accidently shot by the defendant John Chilelli during a high speed competitive target shooting event at the gun range of the defendant Long Island Practical Shooters, Inc. The plaintiff commenced this action against the defendants to recover damages for the personal injuries he sustained, and he appeals from an order granting Chilelli's motion for summary judgment dismissing the complaint insofar as asserted against him, and granting that branch of the motion of Long Island Practical Shooters, Inc., which was for summary judgment dismissing the complaint insofar as asserted against it, based on the doctrine of primary assumption of the risk. We affirm.
"Under the doctrine of primary assumption of risk, a person who voluntarily participates in a sporting activity generally consents, by his or her participation, to those injury-causing events, conditions, and risks which are inherent in the activity (see Morgan v State of New York, 90 N.Y.2d 471, 484; Turcotte v Fell, 68 N.Y.2d 432, 439). Risks inherent in a sporting activity are those which are known, apparent, natural, or reasonably foreseeable consequences of the participation (see Morgan v State of New York, 90 N.Y.2d at 484; Turcotte v Fell, 68 N.Y.2d at 439). Because determining the existence and scope of a duty of care requires 'an examination of plaintiff's reasonable expectations of the care owed him [or her] by others' (Turcotte v Fell, 68 N.Y.2d at 437), the plaintiff's consent does not merely furnish the defendant with a defense; it eliminates the duty of care that would otherwise exist. Accordingly, when a plaintiff assumes the risk of participating in a sporting event, 'the defendant is relieved of legal duty to the plaintiff; and being under no duty, he [or she] cannot be charged with negligence' (id. at 438, quoting Prosser and Keeton, Torts § 68, at 480-481 [5th ed.])" (Cotty v Town of Southampton, 64 A.D.3d 251, 253-254).
"[A]lthough the assumption of risk to be implied from participation in a sport with awareness of the risk is generally a question of fact for a jury... dismissal of a complaint as a matter of law is warranted when on the evidentiary materials before the court no fact issue remains for decision by the trier of fact" (Maddox v City of New York, 66 N.Y.2d 270, 279 [citation omitted]).
The defendants made a prima facie showing of their entitlement to judgment as a matter of law based on the doctrine of primary assumption of the risk, by establishing that the plaintiff assumed the risk of being shot by an accidently discharged firearm during a high speed target shooting competition, which was a risk inherent to that sport (see Bukowski v Clarkson Univ., 19 N.Y.3d 353, 356). Moreover, the record established that the plaintiff, who had extensive firearms experience and had participated in many shooting competitions both as a competitor and as a range officer, was aware of the potential for injury as a result of being accidently shot during the competition (see Berrin v Incorporated Vil. of Babylon, 186 A.D.3d 1598, 1600).
In opposition, the plaintiff failed to raise a triable issue of fact (see Koubek v Denis, 21 A.D.3d 453).
CHAMBERS, J.P., MILLER, BARROS and CHRISTOPHER, JJ., concur.