Opinion
14874 Index No. 150046/16 Case No. 2020–03829
01-11-2022
Diane SAMUELSEN, Plaintiff–Respondent, v. WOLLMAN RINK OPERATIONS LLC et al., Defendants–Appellants–Respondents, Classic Carpet Showroom, Inc., Defendant–Respondent–Appellant.
Lester Schwab Katz & Dwyer, LLP, New York (John Sandercock of counsel), for appellants-respondents. Law Offices of Kevin J. Philbin, New York (Michael P. Beckley of counsel), for respondent-appellant. Gersowitz Libo & Korek, P.C., New York (Anthony Makarov of counsel), for respondent.
Lester Schwab Katz & Dwyer, LLP, New York (John Sandercock of counsel), for appellants-respondents.
Law Offices of Kevin J. Philbin, New York (Michael P. Beckley of counsel), for respondent-appellant.
Gersowitz Libo & Korek, P.C., New York (Anthony Makarov of counsel), for respondent.
Kapnick, J.P., Friedman, Gonza´lez, Rodriguez, Pitt, JJ.
Order, Supreme Court, New York County (Nancy M. Bannon, J.), entered August 19, 2020, which denied defendants Wollman Rink Operations LLC and the Trump Organization, Inc.’s (together, WRO) and Classic Carpet Showroom Inc.’s (Classic) motions for summary judgment dismissing the complaint and cross claims against them, unanimously modified, to dismiss the complaint and the cross claims against Classic, and otherwise affirmed, without costs.
Plaintiff testified that she stepped off an ice rink and onto an entrance ramp that had uneven matting and lumpy ice buildups, that her skates got stuck and that she fell, hitting her head. Defendants failed to establish that the assumption of risk doctrine bars plaintiff's claim as a matter of law. The alleged lumpy ice and uneven matting on the ramp cannot be found on this record to constitute an inherent risk of the sport of ice skating, as opposed to a defective condition occurring in the ordinary course of maintenance (see Morgan v. State of New York, 90 N.Y.2d 471, 485–486, 488–489, 662 N.Y.S.2d 421, 685 N.E.2d 202 [1997] ; Samuels v. Town Sports Intl., LLC, 174 A.D.3d 429, 429–430, 101 N.Y.S.3d 833 [1st Dept. 2019] ). Moreover, questions of fact exist as to whether the allegedly hazardous conditions unreasonably increased the risk of falling ( Morgan, 90 N.Y.2d at 484–485, 662 N.Y.S.2d 421, 685 N.E.2d 202 ). Defendants also failed to establish their entitlement to summary judgment based on plaintiff's alleged inability to identify the cause of her fall. The deposition testimony submitted by defendants in support of their motions provided a nonspeculative basis for plaintiff's version of the accident, and sufficiently established a nexus between the allegedly hazardous conditions and the circumstances of her fall (see Pen~a v. Tyrax Realty Mgt., Inc., 150 A.D.3d 440, 440, 54 N.Y.S.3d 4 [1st Dept. 2017] ).
Assuming the lack of handrails in the area where plaintiff fell was not a hazardous condition, WRO failed to establish that it lacked constructive notice of the uneven matting and lumpy ice buildup (see generally Early v. Hilton Hotels Corp., 73 A.D.3d 559, 560–561, 904 N.Y.S.2d 367 [1st Dept. 2010] ). The deposition testimony relied on by WRO established that multiple witnesses saw the ice buildup and that it was visible and existed for a period of time preceding plaintiff's fall. WRO did not establish when the ramp was last inspected before plaintiff's accident, and issues of fact exist as to whether the ice buildup existed for a sufficient length of time prior to plaintiff's accident to permit WRO to discover and remedy it (see id. ; Yuk Ping Cheng Chan v. Young T. Lee & Son Realty Corp., 110 A.D.3d 637, 637, 973 N.Y.S.2d 642 [1st Dept. 2013] ). Plaintiff also raised issues of fact through expert testimony as to whether the ice was present long enough to permit its discovery.
However, the complaint and cross claims against Classic should have been dismissed. The record shows that WRO purchased the ramp matting from Classic and that Classic installed the matting. Classic owed no duty to plaintiff, and there was no contract between WRO and Classic. Thus, contrary to plaintiff's argument, Classic has no tort liability based upon Espinal v. Melville Snow Contrs., Inc., 98 N.Y.2d 136, 746 N.Y.S.2d 120, 773 N.E.2d 485 (2002), where under certain circumstances, a duty of care to noncontracting third parties may arise out of a contractual obligation. In any event, even if there had been a contractual relationship between WRO and Classic, the record does not raise any triable issue as to whether Classic "launche[d] a force or instrument of harm" ( id. at 140, 746 N.Y.S.2d 120, 773 N.E.2d 485 [internal quotation marks omitted]).
We have considered defendants’ remaining arguments and find them unavailing.