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Thornberg v. Town of Islip

Supreme Court, Appellate Division, Second Department, New York.
Apr 29, 2015
127 A.D.3d 1162 (N.Y. App. Div. 2015)

Opinion

2013-06168, Index No. 40630/09.

04-29-2015

Lois J. THORNBERG, etc., appellant, v. TOWN OF ISLIP, respondent, et al., defendants.

Davis & Ferber, LLP, Islandia, N.Y. (Melissa B. Pittelli of counsel), for appellant. Goldberg Segalla, LLP, Garden City, N.Y. (Brian McElhenny and Brendan T. Fitzpatrick of counsel), for respondent.


Davis & Ferber, LLP, Islandia, N.Y. (Melissa B. Pittelli of counsel), for appellant.

Goldberg Segalla, LLP, Garden City, N.Y. (Brian McElhenny and Brendan T. Fitzpatrick of counsel), for respondent.

Opinion In an action to recover damages for personal injuries, the plaintiff appeals, as limited by her brief, from so much of an order of the Supreme Court, Suffolk County (Rebolini, J.), dated April 4, 2013, as granted that branch of the motion of the defendant Town of Islip which was for summary judgment dismissing the amended complaint insofar as asserted against it.ORDERED that the order is affirmed insofar as appealed from, with costs.

The Supreme Court properly granted that branch of the motion of the defendant Town of Islip which was for summary judgment dismissing the amended complaint insofar as asserted against it. The Town established its prima facie entitlement to judgment as a matter of law pursuant to the doctrine of primary assumption of the risk. The Town demonstrated that being struck in the head without warning by an errantly hit golf ball is a risk inherent in playing golf (see Anand v. Kapoor, 15 N.Y.3d 946, 948, 917 N.Y.S.2d 86, 942 N.E.2d 295 ; Rinaldo v. McGovern, 78 N.Y.2d 729, 733, 579 N.Y.S.2d 626, 587 N.E.2d 264 ; Delaney v. MGI Land Dev., LLC, 72 A.D.3d 1254, 898 N.Y.S.2d 695 ; see generally Lundin v. Town of Islip, 207 A.D.2d 778, 779, 616 N.Y.S.2d 394 ), and that it had not concealed or unreasonably enhanced the condition that allegedly led to the subject accident (see Custodi v. Town of Amherst, 20 N.Y.3d 83, 88, 957 N.Y.S.2d 268, 980 N.E.2d 933 ).

In opposition, the plaintiff failed to raise a triable issue of fact (see Lombardo v. Cedar Brook Golf & Tennis Club, Inc., 39 A.D.3d 818, 834 N.Y.S.2d 326 ; see also Alvarez v. Prospect Hosp., 68 N.Y.2d 320, 324, 508 N.Y.S.2d 923, 501 N.E.2d 572 ). The plaintiff's expert, who opined that the golf course was negligently designed and maintained, failed to identify any specific industry standard upon which he relied in concluding that the Town was negligent (see Bohan v F.R.P. Sheet Metal Contr. Corp., 58 A.D.3d 781, 872 N.Y.S.2d 168 ; Milligan v. Sharman, 52 A.D.3d 1238, 1239, 859 N.Y.S.2d 827 ).

MASTRO, J.P., LEVENTHAL, MALTESE and DUFFY, JJ., concur.


Summaries of

Thornberg v. Town of Islip

Supreme Court, Appellate Division, Second Department, New York.
Apr 29, 2015
127 A.D.3d 1162 (N.Y. App. Div. 2015)
Case details for

Thornberg v. Town of Islip

Case Details

Full title:Lois J. THORNBERG, etc., appellant, v. TOWN OF ISLIP, respondent, et al.…

Court:Supreme Court, Appellate Division, Second Department, New York.

Date published: Apr 29, 2015

Citations

127 A.D.3d 1162 (N.Y. App. Div. 2015)
5 N.Y.S.3d 903
2015 N.Y. Slip Op. 3518

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