Opinion
2014-12-3
Tahsin MAMATI, appellant, v. CITY OF NEW YORK PARKS & RECREATION, et al., respondents.
Sullivan Papain Block McGrath & Cannavo P.C., New York, N.Y. (Stephen C. Glasser and Susan M. Jaffe of counsel), for appellant. Zachary W. Carter, Corporation Counsel, New York, N.Y. (Edward F.X. Hart and Marta Ross of counsel), for respondents.
Sullivan Papain Block McGrath & Cannavo P.C., New York, N.Y. (Stephen C. Glasser and Susan M. Jaffe of counsel), for appellant. Zachary W. Carter, Corporation Counsel, New York, N.Y. (Edward F.X. Hart and Marta Ross of counsel), for respondents.
RUTH C. BALKIN, J.P., L. PRISCILLA HALL, LEONARD B. AUSTIN, and BETSY BARROS, JJ.
In an action to recover damages for personal injuries, the plaintiff appeals from an order of the Supreme Court, Queens County (Kerrigan, J.), entered September 11, 2013, which granted the defendants' motion for summary judgment dismissing the complaint.
ORDERED that the order is affirmed, with costs.
The plaintiff was riding his motocross bicycle, popularly known as a BMX bike, on a dirt bike trail in Cunningham Park in Queens when he allegedly was injured while jumping his bicycle off of a dirt mound.
The defendants moved for summary judgment dismissing the complaint on the ground, inter alia, that the action was barred by the doctrine of primary assumption of risk, since the plaintiff voluntarily jumped his bicycle from one dirt mound to another on the trail and, thus, assumed the risk of injury. The Supreme Court granted the motion, and we affirm.
Under the doctrine of primary assumption of risk, a person who voluntarily participates in a sporting or recreational activity generally consents, by his or her participation, to those injury-causing events, conditions, and risks which are inherent in and arise out of the nature of the activity ( see Morgan v. State of New York, 90 N.Y.2d 471, 484, 662 N.Y.S.2d 421, 685 N.E.2d 202; Turcotte v. Fell, 68 N.Y.2d 432, 439, 510 N.Y.S.2d 49, 502 N.E.2d 964). 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, 662 N.Y.S.2d 421, 685 N.E.2d 202; Turcotte v. Fell, 68 N.Y.2d at 439, 510 N.Y.S.2d 49, 502 N.E.2d 964). “If the risks of the activity are fully comprehended or perfectly obvious, [the] plaintiff has consented to them and [the] defendant has performed its duty” by making the conditions as safe as they appear to be (Turcotte v. Fell, 68 N.Y.2d at 439, 510 N.Y.S.2d 49, 502 N.E.2d 964; see Brown v. City of New York, 69 A.D.3d 893, 893, 895 N.Y.S.2d 442; Marshall v. City of New Rochelle, 15 A.D.3d 456, 790 N.Y.S.2d 504; Restaino v. Yonkers Bd. of Educ., 13 A.D.3d 432, 785 N.Y.S.2d 711; Dobert v. State of New York, 8 A.D.3d 873, 779 N.Y.S.2d 143; Vecchione v. Middle Country Cent. School Dist., 300 A.D.2d 471, 752 N.Y.S.2d 82; Verro v. New York Racing Assn., 142 A.D.2d 396, 536 N.Y.S.2d 262). This includes risks associated with the construction of the playing surface and any open and obvious condition on it ( see Ziegelmeyer v. United States Olympic Comm., 7 N.Y.3d 893, 826 N.Y.S.2d 598, 860 N.E.2d 60; Sykes v. County of Erie, 94 N.Y.2d 912, 707 N.Y.S.2d 374, 728 N.E.2d 973; Welch v. Board of Educ. of City of N.Y., 272 A.D.2d 469, 469, 707 N.Y.S.2d 506; see e.g. Rivera v. Glen Oaks Vil. Owners, Inc., 41 A.D.3d 817, 820–821, 839 N.Y.S.2d 183; Restaino v. Yonkers Bd. of Educ., 13 A.D.3d 432, 785 N.Y.S.2d 711; Goldberg v. Town of Hempstead, 289 A.D.2d 198, 733 N.Y.S.2d 691; Calise v. City of New York, 239 A.D.2d 378, 379, 657 N.Y.S.2d 430).
In support of their motion, the defendants established their prima facie entitlement to judgment as a matter of law by demonstrating that the plaintiff assumed the risk of his injuries by voluntarily jumping his bicycle from the subject dirt mound, and that the plaintiff was fully aware of the condition of the mound at the time of the accident, as he successfully jumped off the mound twice prior to the accident ( see Calise v. City of New York, 239 A.D.2d at 378, 657 N.Y.S.2d 430). In opposition, the plaintiff failed to show that the doctrine of primary assumption of risk was inapplicable. The plaintiff submitted the affidavit of an engineer, who had no stated expertise relating to motocross bicycling, and, in any event, the affidavit was speculative, conclusory, and lacking in foundation ( see Boyle v. Pottery Barn Outlet, 117 A.D.3d 665, 985 N.Y.S.2d 291; Paladino v. Time Warner Cable of N.Y. City, 16 A.D.3d 646, 648, 793 N.Y.S.2d 63). Accordingly, the Supreme Court properly granted the defendants' motion for summary judgment dismissing the complaint.