Opinion
Appeal No. 14711 Index No. 150255/172021-00716
11-30-2021
Roderick Stewart, Plaintiff-Appellant, v. Wollman Rink Operations LLC et al., Defendants-Respondents. Index No. 150255/17 Appeal No. 14711
Rosenbaum & Rosenbaum, P.C., New York (Mark W. Walsh of counsel), for appellant. Lester Schwab Katz & Dwyer, LLP, New York (John Sandercock of counsel), for respondents.
Rosenbaum & Rosenbaum, P.C., New York (Mark W. Walsh of counsel), for appellant.
Lester Schwab Katz & Dwyer, LLP, New York (John Sandercock of counsel), for respondents.
Before: Renwick, J.P., Mazzarelli, Moulton, Scarpulla, Higgitt, JJ.
Order, Supreme Court, New York County (Paul A. Goetz, J.), entered February 8, 2021, which granted defendants' motion for summary judgment dismissing the complaint, unanimously reversed, on the law, without costs, and the motion denied.
Plaintiff, an experienced skater, sued defendants to recover damages for personal injuries sustained when he fell at approximately 4:30 p.m. on December 15, 2015, while coaching ice hockey to Birch Wathen Lenox Middle School (Birch Wathen) students at Lasker Rink (West) in Central Park. Plaintiff claims that he fell when his skate hit a rut.
Even assuming defendants made a prima facie showing that they lacked notice of the rut, plaintiff raised an issue of fact as to notice. Plaintiff testified at his deposition that he complained about the "rough" condition of the ice at 3:45 p.m., more than half-an-hour before his fall, and that the condition of the ice remained poor at 4:15 p.m., when the hockey practice began.
Plaintiff does not dispute that defendants made a prima facie showing that his claims were barred by assumption of the risk (see generally Morgan v State, 90 N.Y.2d 471 [1997]). However, plaintiff raised an issue of fact as to inherent compulsion. Plaintiff testified that he understood that his supervisors were Wollman employees. He further testified that when he informed one of these supervisors of his concerns about the rough ice the supervisor dismissed his concerns and directed him to proceed with the practice. Plaintiff believed that he lacked authority to cancel or reschedule practice on his own initiative (e.g. DeGala v Xavier High Sch., 203 A.D.2d 187 [1st Dept 1994]; see generally Benitez v New York City Bd. of Educ., 73 N.Y.2d 650, 658-659 [1989]).