Opinion
Index 608903/2018
07-07-2021
LAKISHA TAYLOR Plaintiff(s), v. UNITED STATES OF AMERICA, INC, And AVR MASSAPEQUA, LLC, Defendant(s). Motion Seq. No. 002
Thomas Rademaker Judge
Unpublished Opinion
Motion Submitted Date 7/6/2021
PRESENT: Hon, Thomas Rademaker, J.S.C.
DECISION AND ORDER
Thomas Rademaker Judge
The following papers read on this motion:
Notice of Motion/Supporting Exhibits, (mot seq 002).......... 1
Affirmations in Opposition ..........2
Reply Affirmation ........3
The Defendants move pursuant to CPLR §3212, for an Order which seeks, inter alia, summary judgment against Plaintiff with respect to the liability, and dismissal of the complaint in its entirety.
This action involves a claim for personal injury alleged sustained by the plaintiff in a roller skating falling accident which occurred on March 22, 2017, at the United Skates of American roller rink located at 1276 Hicksville, Road. Seaford, New York.
It is well settled that in a motion for summary judgment the moving party bears the burden of making a prima facie showing that he or she is entitled to summary judgment as a matter of law, submitting sufficient evidence to demonstrate the absence of a material issue of fact (see Sillman v. Twentieth Century Fox Film Corp., 3 N.Y.2d 395 [1957]; Friends of Animals, Inc. v. Associates Fur Mfrs., 46 N.Y.2d 1065 11979]; Zuckerman v. City of New York, 49 N.Y.2d 5557 [1980]; Alvarez v. Prospect Hospital, 68 N.Y.2d 320 [1986]).
The failure to make such a showing requires denial of the motion, regardless of the sufficiency of the opposing papers (see Winegard v. New York University Medical Center, 64 N.Y.2d 851 [1985]). Once this showing has been made, however, the burden shifts to the party opposing the motion for summary judgment to produce evidentiary proof in admissible form sufficient to establish the existence of material issues of fact which require a trial of the action (see Zuckerman v. City of New York. 49 N.Y.2d 5557 [1980]). The primary purpose of a summary judgment motion is issue finding not issue determination (Garcia v. J. C. Duggan, Inc., 180 A.D.2d 570 [ 1 st Dept. 1992]), and it should only be granted when there are no triable issues of fact (see also Andre v. Pomeroy, 35 N2d 361 [1974]), The Defendants contends that the Plaintiff voluntarily participated in the skating activity at its facility and that the operator of a sports facility isj not liable for the Ordinary hazards of a sport. (Heard v. City of New York 82 N.Y.2d 66 [1993]; Turcotte v Fell, 68 N.Y.2d 432 [1986]) In the context of roller skating, a facility is not responsible for risks inherent in the activity of skating. (Bleyer v. Recreational Management Services Corp. 289 A.D.2d 519 [2nd Dept 2001]; Clements v. Skate 9H Realty, 277 A.D.2d 614 [3rd Dept. 2000]; Keiner v. Commack Orller Rink, 201 A.D.2d 462 [2nd Dept 1994]; Lopez v. Skate Key, Inc., 174 A.D.2d 534 [1st Dept. 1991]).
To prevail on a motion for summary judgment on the issue of liability in an action alleging negligence, a plaintiff has the burden of establishing prima facie, not only that the defendant Was negligent, but that the plaintiff was free from comparative fault. (Ramos v Bartis, 112 A.D.3d 804, 804 [2nd Dept 2013]; see Pollack v Margolin, 84 A.D.3d 1341, 1342, [2nd Dept 2011]).
The plaintiff contends that the Defendants's motion was untimely, and further, the plaintiff disputes the facts and circumstances as alleged by Defendant. The Plaintiff claimed that the skates provided to her by the facility were defective. The Defendant contends that the video of the accident confirm that the Plaintiff s skates simply rolled out from underneath her and did not lock.
With respect to the timeliness of Defendant's motion, this matter was certified ready for trial on December 10, 2019, with the Court issuing an Order that summary judgment must be filed "within (60)(90) of the filing of the note of issue." Note of Issue was filed with the Court on March 6, 2020. The Defendants filed their motion for summary judgment on August 20, 2020, which is 167 from the filing of the Note of Issue.
The Defendant has not made an application for the late filing of a Note of Issue, and the filing date of the Note of Issue even exceeds the 120 day fine provided in the Civil Practice Law and Rules. (See Brill v. City of New York 2 N.Y.3d 648 [2004]).
Furthermore. the Defendants submission was inadequate to form a basis for summary judgment, as the Defendants' deposition witness could not verify how the cleaning of skates is documented in the ordinary course of business. The Defendants' witness had merely reviewed hearsay incident report documents in preparation for the deposition and a review of the video recording of the alleged incident is open to factual interpretation.
Accordingly, based upon the untimelmess of the Defendants' motion, and upon a careful review of the papers submitted in support of and in opposition to the Defendants' motions, along with their respective annexed exhibits, and given the tactual differences between the accounts of the parties, the Defendants' motion for summary' judgment is hereby DENIED.
This constitutes the Decision and Order of the Court.