Opinion
July 25, 1996
Appeal from the Supreme Court, New York County (Jane Solomon, J.).
The infant plaintiff, who was 16 1/2 at the time of the accident, was injured at the Wollman rink when he skated in size 13 skates. (Although he had asked for size 10 1/2, only size 13 skates were available at the rental counter.) The skates felt loose while he was skating and he fell fracturing his right ankle.
Although the 16 1/2 year old claimed to be a newcomer to ice skating, he conceded that he regularly played several other sports and never wore improperly fitting footwear while participating in those sports. By his own admission, the plaintiff selected skates which he knew were much too large and ill-fitting. Plaintiff, who seeks damages for an injury incurred in a sports activity in which he voluntarily participated despite the obvious existence of a potentially dangerous condition, cannot recover by reason of assumption of the risk ( see, Benitez v. New York City Bd. of Educ., 73 N.Y.2d 650, 657).
Nor was plaintiff compelled to skate in grossly oversized skates because an employee at the skate rental counter allegedly told him that his admission fee would not be refunded. Plaintiff concededly did not try to obtain a refund at the admission booth and was not under the "compulsion of a superior" in accepting and skating in the wrong-sized skates ( supra, at 658).
Concur — Murphy, P.J., Wallach, Ross, Nardelli and Williams, JJ.