Opinion
112887.
Decided September 17, 2008.
Weingrad Weingrad, LLP, By: Penny Shemtob, Esquire, for Claimants.
Honorable Andrew M. Cuomo, Attorney General, By: Frederick H. McGown, III, Esquire, Assistant Attorney General, for Defendant.
Claimants move for partial summary judgment on the issue of liability. The defendant moves for summary judgment dismissing the claim pursuant to CPLR 3212. For the reasons which follow, the defendant's motion is granted and the claimants' motion is denied.
Claimant, Mikhail Tkeshelashvili, was rendered a quadriplegic on September 4, 2005 when he dove into water from the eastern spillway of a dam located on the north side of Colgate Lake. Claimants allege that the defendant was negligent in failing to maintain the lake in a reasonably safe condition in that the water level was too low for swimming and diving and unsafe for use by the public without restrictions and proper warnings regarding jumping and diving into the lake, particularly in the area of the dam.
Reference to claimant in singular form refers to Mikhail Tkeshelashvili.
Claimant was born in Kutaisi, Georgia in 1962 (defendant's Exhibit N, P. 9). He graduated from high school in Kutaisi and completed a program of study in Economics at Rostov University in Russia (defendant's Exhibit N, p. 10). He moved to the Ukraine in 1989 and immigrated to the United States in 1992 where he settled in Brooklyn, New York with his family ( Id. at 12-13).
On Friday, September 2, 2005 claimants and their two children went to the Cortina Hotel in Tannersville, New York where they were joined by friends the following day (defendant's Exhibit N, EBT of Mikhail Tkeshelashvili, pp. 24, 30). On Sunday, September 4, 2005 the claimant went for a drive with his friends Levan Mushtarauli and Georgi Khangava ( Id. at 37 — 43). The three men ultimately proceeded to Colgate Lake in Levan's car, which the claimant was driving, arriving there at approximately 3:00 p.m. ( Id. at 47, 49). Claimant parked the car in a dirt parking lot near the lake and he and his friends walked along the shoreline to the concrete dam ( Id. at 53-54; defendant's Exhibit O, EBT of Levan Mushtarauli, pp. 16 — 17). Claimant jumped from the upper level of the dam to the lower level, which was actually a spillway, where he walked two or three steps and then dove into the lake with his chest forward ( Id. at 54-57).
Claimant's examination before trial testimony was taken with the aid of an interpreter.
Claimant's use of the word "jump" was generally synonymous with the word "dive" ( see defendant's Exhibit N, claimant's EBT, pp. 31-32, 55).
At the same time James (Jay) Ward and his friend, Lois Keegan, were sitting in beach chairs in a grassy area three or four feet from the water line talking (defendant's Exhibit Q, EBT of James Ward, pp. 9-10; defendant's Exhibits G and K, Affidavits of James Ward and Lois Keegan). Mr. Ward was facing Ms. Keegan and Ms. Keegan was facing the nearby dam. Ms. Keegan observed three men on the dam "being loud, and laughing" (defendant's Exhibit K, affidavit of Lois Keegan, p. 2). She states the following in her affidavit: "This man didn't hesitate, he walked right to the edge of the spillway, pulled his shirt off, and dove headfirst into the water. I thought this was unusual, because the water is shallow. After diving, the man surfaced, but I noticed he didn't lift his head. This seemed wrong to me. I kept watching him, waiting for him to breathe. I noticed he seemed to be trying to lift his head but somehow seemed unable to do so . . . I asked the other two men if their friend was ok, but they disregarded my questions, finally the skinny man said, 'He's just playing!'. I knew something was wrong. Jay was still talking and didn't know what happened, so I interrupted him and said, 'He needs your help.'"
At this point the claimant had floated face down into deeper water and Mr. Ward, who is trained in outdoor emergency care, jumped in to assist him ( see defendant's Exhibits G and K, affidavits of Lois Keegan and James Ward, and defendant's Exhibit Q, EBT of James Ward, pp. 11-17). Mr. Ward turned the claimant over in the water, stabilized his neck and back, and brought him to the shoreline until rescue personnel could arrive. Claimant had little or no sensation in his extremities and was airlifted to Albany Medical Center.
Both Ms. Keegan and Mr. Ward indicate that the two men who were with the claimant actually hindered the rescue effort. Both indicate in an affidavit that one man jumped on top of the claimant as Mr. Ward was bringing him to shore and that both men were grabbing his arms (defendant's Exhibit's G and K, affidavits of James Ward and Lois Keegan; defendant's Exhibit Q, EBT of James Ward, p. 18). The friends, on the other hand, both testified at an examination before trial that they simply assisted Mr. Ward in bringing the claimant to shore. Claimant and Levan Mushtarauli both denied consuming alcoholic beverages on the date of the accident. Georgi Khangava admitted to having one beer with his breakfast (defendant's Exhibit P, EBT of Georgi Khangava, p. 31).
Lois Keegan indicates in her affidavit that the claimant's friends appeared to be drinking and that she smelled alcohol while standing near them (defendant's Exhibit K).
Mr. Mushtarauli testified that when he realized the claimant was in trouble he, like the claimant, dove headfirst from the spillway of the dam, bruising his hands on the lake bottom (defendant's Exhibit O, EBT of Levan Mushtarauli, pp. 43 — 46). When Mr. Mushtarauli stood up, the water level was only "a little over [his] knees"( Id. at p. 45, line 11). Prior to diving he looked quickly at the water but was unable to determine its depth ( Id. at p. 44).
The claimant testified at an examination before trial that he had jumped from the upper part of the dam to the lower spillway "many times". He had also "jumped" into the water from the spillway "many times" (defendant's Exhibit N, EBT of claimant, pp. 56 — 57). When asked to estimate the number of times he had been to Colgate Lake prior to the accident, the claimant testified "I am sure that I've been there more than twenty times but I don't know how many times because a lot of times" ( Id. at 45). On those prior occasions the claimant had been to the lake, he observed people swimming, suntanning, talking and children playing ( Id. at 46). On some of those occasions he observed water flowing over the spillway and on others he did not (defendant's Exhibit N, EBT of claimant, p. 56; Affidavit of Mikhail Tkeshelashvili annexed to claimants' Notice of Motion, ¶ 8). Claimant testified, however, that water was not flowing out of the lake over the spillway on the date of his accident (defendant's Exhibit N, EBT of claimant, p. 55). Notwithstanding his awareness that water was not flowing through the spillway at the time, the claimant testified that he "had no clue" how deep the water was below the level of the spillway when he dove into the lake (defendant's Exhibit N, EBT of claimant, p. 55).
Claimant's use of the word "jump" was generally synonymous with the word "dive" ( see defendant's Exhibit N, claimant's EBT, pp. 31-32, 55).
The affidavit of the claimant submitted in support of his motion indicates that over a period of five years he and his family visited Colgate Lake frequently and had last been there during the Memorial Day weekend preceding the date of the incident at issue herein (May 28, 2005 — May 30, 2005). At that time he swam near the dam and dove into the water from the spillway ( see Affidavit of Mikhail Tkeshelashvili, ¶ 3). "My family and I, on the many prior occasions we visited there frequently, dived into the water from these spillways of the dam. I also saw other people who I did not know diving into the water from these spillways" ( Id. at ¶ 4). The claimant described the events leading up to the accident and his observation of the water depth as follows:
"7.Levan, Georgi and I walked out onto the dam. Levan and Georgi were behind me. Just as I had walked onto the dam many times before with my family and friends, on the day of my accident, I walked across the dam toward the spillway. I looked down to the area of the lake where I had dived in off the spillway many times in the past. I saw the water below was dark and that I could not see down to the bottom. The water looked no different than it had on the many prior occasions I had dived from the spillway. The water there was always dark. It looked the same as it did when I dove from the spillway just months before, in May. 8.I saw that no water was running over the spillway. This was not different from prior times when I dove because in the past when I dove off the spillway, sometimes water would be running over the spillway and sometimes it would not be running over the spillway. I never encountered any problem diving off the spillway whether or not water was running over the spillway."
Affidavits were also submitted from claimant Anna Tkeshelashvili, Mikhail Novakhov, Viktor Kholin, Olga Zakirov, Akmat Zakirov and Konstantin Tkeshelashvili. Anna Tkeshelashvili states in her affidavit that she had been to Colgate Lake in each of the summers of 2001 — 2004 and in May, 2005. On those prior occasions, she swam in the lake and, although she saw others diving or jumping into the lake from the spillway, she herself did not. Similarly, the affidavits of Mikhail Novakhov, Viktor Kholin, Olga Zakirov, Akmat Zakirov and Konstantin Tkeshelashvili all indicate that they had been to Colgate Lake in the years preceding the accident and had either dived from the spillway themselves or saw others who did.
Three days after the accident occurred Norman Channing, an Investigator for the Department of Environmental Conservation's (DEC) Division of Law Enforcement, went to the scene of the accident with James Ward. Mr. Ward showed him the eastern spillway of the dam and Officer Channing took pictures of the area and obtained Mr. Ward's version of the events of that day. The pictures, submitted by both the defendant and the claimants in support of their respective motions, were taken at approximately the same time of day the claimant's accident occurred and under similar weather conditions ( see claimants' Volume Eight of Eight, EBT of Channing, pp. 37-39).According to Officer Channing, the photograph marked as claimants' Exhibit 32 depicts the shallow depth of the water near the dam (claimants' Volume Three of Eight, Channing's Photographs of Colgate Lake Dam; claimants' Volume Eight of Eight, EBT of Channing, p. 55). Levan Mushtarauli testified at an examination before trial that the photograph marked as claimants' Exhibit 32 depicts where he and Georgi were standing on the dam just before the claimant's accident and that the photograph marked as claimants' Exhibit 36 depicts the spillway from which he (and the claimant) dove (claimants' Volume Eight of Eight, EBT of Levan Mushtarauli, p. 39).
Colgate Lake, situated in Greene County, New York, lies within the Catskill Forest Preserve which consists of approximately 272,000 acres (defendant's Exhibit L, Catskill Park State Land Master Plan, p. 7; defendant's Exhibit E, Affidavit of Paul Trotta, ¶ 5). The Ranger district comprising Greene County includes an estimated 96,000 acres of state land, the majority of which lies within the Catskill Forest Preserve (defendant's Exhibit L, Catskill Park State Land Master Plan; defendant's Exhibit J, Affidavit of Darryl Kittle, ¶ 3). According to the 1998 publication entitled New York State, A Morphometric Atlas of Selected Lakes, Colgate Lake has a surface area of 26 acres, a mean depth of 4.6 feet, a maximum depth of 10 feet, and a watershed area of 5.5 square miles ( see claimants' Volume Three of Eight, Exhibit 4, p. 24; Volume Two of Eight, Envelope No. 4, Bates stamp 312).
The Catskill Park State Land Master Plan (Master Plan) establishes the following four classifications of State land within the park: Wilderness, Wild Forest, Intensive Use and Administrative Areas (defendant's Exhibit L, Catskill Park State Land Master Plan, p. 1; defendant's Exhibit E, Affidavit of Paul Trotta). Colgate Lake, located in the Black Dome Valley, lies in an area designated as Wild Forest (defendant's Exhibit L, Catskill Park State Land Master Plan, pp. 56-58; defendant's Exhibits E, Affidavit of Paul Trotta and J Affidavit of Darryl J. Kittle). According to the affidavit of Paul Trotta, a DEC Forester, "Wilderness is the most pristine and Wild Forest is next" (defendant's Exhibit E, Affidavit of Paul Trotta, ¶ 5). Unlike Intensive Use areas, such as public beaches and campgrounds, there is very little infrastructure and few amenities in areas designated as Wild Forest (defendant's Exhibit E, Affidavit of Paul Trotta, ¶ 6). Colgate Lake contains no formal beach and has no lifeguards (defendant's Exhibit E, Affidavit of Paul Trotta, ¶ 9; defendant's Exhibit I, Affidavit of Shirley Denesha, ¶ 5). There is no prohibition against swimming at Colgate Lake and there are no signs at the lake which address the issue of swimming (defendant's Exhibit E, Affidavit of Paul Trotta, ¶ 7).
Although Colgate Lake lies within a Wild Forest area, it was acknowledged in the Master Plan (defendant's Exhibit L, p. 59) that unrestricted use of the lake was a growing problem. "The lake is a popular swimming, picknicking [ sic] and camping spot. Unsupervised and unrestricted use is a present and growing problem. There are no plans for any organized recreational development. Other than parking lots and the connecting foot trail, there are no man-made interior facilities."
At his examination before trial, Jeffrey Breigle, a DEC Forest Ranger, testified that he patrolled the Colgate Lake area three to four times per week. He estimated that during weekdays approximately 20 to 25 people were at the lake on a "nice" day and nearly 100 people on weekends (claimants' Volume Eight of Eight, EBT of Jeffrey Breigle, pp. 12 — 13). Mr. Breigle also testified that he frequently observed people sitting on the dam, standing in the spillway, and swimming near the dam ( Id. at 15 — 16).
The State of New York purchased the property where Colgate Lake is located in 1975 (defendant's Exhibit R, EBT of Paul Trotta, p. 101). The dam at the lake was built in 1887 as a timber crib and laid-up stone structure (claimants' Volume Two of Eight, Envelope No. 4, Bates 312). It was rehabilitated in 1914 and repaired several times throughout the years ( Id. at 312, 309, 317, 318, 319, 327; claimants' Volume Two of Eight, Envelope No. 5, Bates 392, 395, 397, 409). In 1996, for example, repairs were made after water was observed leaking from the dam at the rate of 200 — 300 gallons per minute (defendant's Exhibit H, Affidavit of Thomas Miller, ¶ 5; claimants' Volume Two of Eight, Envelope No. 4, Bates 316, 319). The dam was classified as a Class B downstream hazard potential dam (defendant's Exhibit F, Affidavit of Donald Canestrari, ¶ 8). "The downstream hazard potential is the risk a dam poses to downstream people and property in the event the dam fails" ( Id. at ¶ 2; see also claimants' Volume Five of Eight, Bates 928 — 929). The dam was periodically inspected and, according to status reports maintained by the DEC Environmental Audit Unit, the dam was ranked as an N3 dam in 1998. The dam was assigned an N2 ranking in 2000 (claimants' Volume Four of Eight, Bates 739, 743). A dam with an N3 ranking "[p]oses a discernible but not substantial threat to the public health or the environment" and a dam with an N2 ranking "[p]oses a potential substantial threat to the public health or the environment" (claimants' Volume Three of Eight, Exhibit 15, Memo from Donald Canestrari, Bates 23).
According to the affidavit of Thomas Miller, Bureau Chief of the DEC Bureau of Design and Construction, design work performed at the dam in 1998 addressed only the problem of leakage and not the spillway capacity deficiency or deficiencies with the downstream side of the dam (defendant's Exhibit H, Affidavit of Thomas Miller, ¶ 7). As a result, it was decided that a new dam would be needed. However, due to budgetary constraints, and a shortage of engineers, bids for the construction of a new dam were not opened until April, 2007 ( Id. at ¶ 8).
It appears that the funds for a "major rehab" of the Colgate Dam were available in 2000 (claimants' Volume Two of Eight, Envelope No. 4., Bates 358).
Colgate Lake was drained and construction of a new dam commenced in 2007. Claimants' counsel Stephen Weingrad, Esq., and his assistant, MichaelVignieri, visited the lake for the purpose of taking measurements and pictures of the area after it was drained. In an affirmation submitted in support of the claimants' motion, Mr. Weingrad indicates "the westerly side of the crest of the eastern spillway of the dam is four feet (4') above the lake bottom at the face of the dam" (Affirmation of Stephen Weingrad, Esq., ¶ 4). While holding a ruler at a point "about" six inches below the crest of the spillway, Mr. Vignieri stood six feet from the spillway and the ruler intersected his body at the level of his chest (Affirmation of Stephen Weingrad, Esq., ¶ 5). Referencing the photographs attached to his affirmation, Mr. Weingrad states the following (Affirmation of Stephen Weingrad, Esq., ¶ 5):
"The photographs are intended to show that when there is water in the lake, even if the water is a few inches below the crest of the eastern spillway, it is at least chest high on a person of Mr. Vignieri's height of five feet and ten inches (5' 10") standing six feet (6') out from the face of the spillway. The water would have been still higher on Mr. Tkeshelashvili, who is shorter at five feet and eight (5' 8") in height."
Mr. Weingrad's affirmation does not provide a precise measurement from a point level with the top of the eastern spillway to the ground at a distance of six feet from the face of the spillway, indicating only that the water surface would be at Mr. Vignieri's chest if the water level was "about" six inches below the crest of the spillway .
Mr. Weingrad's affirmation and the annexed photographs reflect that the lake bed at the face of the dam appears to have been flattened. The affidavit of Thomas Miller indicates that in 1998 there was minor regrading of the bottom of the lake which created a level area used by construction equipment to come on site and take soil borings (defendant's Exhibit H, Affidavit of Thomas Miller, ¶ 4). The lake bottom at the face of the dam previously "sloped right to the concrete face of the dam. The net effect was that the water at the base of the dam was actually made deeper" according to Mr. Miller ( Id.).
In addition to the claimant's observation that water flowed over the spillway on some occasions and on other occasions did not, employees from the DEC testified that the water level of the lake fluctuated based upon the prevailing amount of precipitation. Paul Trotta, a Regional Forester in Region 4 where Colgate Lake is located, testified that the "Colgate Lake water level fluctuates based upon the rainfall that comes into the watershed that feeds that lake" (defendant's Exhibit R, EBT of Paul Trotta, p. 53; defendant's Exhibit E, Trotta Affidavit, ¶ 13). Jeffrey Breigle, a Forest Ranger for the DEC who works in the area of Colgate Lake, also testified that sometimes the water level is up and flowing over the spillway and at other times it is not "[p]articularly if you're talking about the summer months. Summer months it's generally very low. The water level goes down particularly if we have a year where we don't have a lot of rain" (claimants' Volume Eight of Eight, EBT of Jeffrey Briegel, pp. 16 — 17).
The deposition testimony of Mr. Trotta also made clear that the water level of the lake was difficult to maintain by virtue of ongoing leaks in the dam ( see defendant's Exhibit R, EBT of Paul Trotta, p. 95). In fact, he testified that the dam leaked "the whole time I've been familiar with it" ( Id. at 113; see also claimants' Volume Two of Eight, Envelopes 4 5, Bates 279, 283 — 290, 307 — 310, 311, 316, 320, 392, 395, 397,409). According to Mr. Trotta, the concern was "more from an esthetic recreation perspective, but it was not believed, in [his] remembrance, that the dam failure, catastrophic failure was an issue" (defendant's Exhibit E, Affidavit of Paul Trotta, ¶ 15).
As a landowner, the State is subject to the same rules of liability as a private citizen and must act reasonably in view of all the circumstances ( Preston v State of New York, 59 NY2d 997, 998; see also Basso v Miller, 40 NY2d 233).The circumstances to be considered include "'the likelihood of injury to others, the seriousness of the injury, and the burden of avoiding the risk'" ( Basso v Miller, 40 NY2d at 241 [citation omitted]). Thus, where the State, as landowner, reserves an area for swimming and provides beach facilities such as picnic tables, barbecue pits, trash cans, and outhouses, it has a duty to either inspect and remove hazards from the water or to give warning that the waters are used at the swimmer's own risk ( Preston v State of New York, 59 NY2d at 998). As noted by the Court of Appeals in Preston, however: "Mere ownership does not give rise to the duty, but inviting the public to swim there does. Obviously, an individual who bathes in a State lake in a primitive area of the Adirondacks cannot expect the State to have 'sanitized' the area for safe public use" ( Id. at 998).
While the State owned Colgate Lake, it did not specifically reserve the area for swimming nor did it invite the public to swim there ( cf. Jarmolowski v State of New York , 23 AD3d 786 ). Claimant successfully established, however, the State's awareness that Colgate Lake was a popular recreational venue and that people commonly swam in the lake and sat and walked upon the dam. Claimant's presence at the lake and on the dam was thus foreseeable and the State therefore had a duty to maintain the area in a reasonably safe condition ( see Zmieske v State of New York, 180 AD2d 894; Walter v State of New York, 185 AD2d 536; Mesick v State of New York, 118 AD2d 214, lv denied 68 NY2d 611).
Defendant's reliance on those cases holding that a landowner has no duty to warn of natural transitory conditions are inapposite ( see e.g. Herman v State of New York, 63 NY2d 822, rearg denied 64 NY2d 755; DeWick v Village of Penn Yan, 275 AD2d 1011[2000]). The thrust of the instant claim is the failure to warn people using the lake against diving from the dam. It is contended that such a warning was necessary because of the danger of low water levels in the lake caused by a failure to maintain the dam ( see Cosgrove Affidavit submitted in support of claimants' motion, p. 7-8; claimants' bill of particulars submitted with motions). Claimants established that during the summer months when precipitation was light the water level of the lake was difficult to maintain due, in part, to the problem of water leaking from the dam (defendant's Exhibit R, Trotta EBT, p. 113). A leaking dam is neither a transitory nor a natural condition. As a result, defendant's reliance on this body of law to negate the existence of a duty to warn is misplaced.
In negligence actions arising out of diving accidents "the element of causation can be resolved on summary judgment where the record eliminates any legal cause other than reckless conduct of the plaintiff or where, notwithstanding any negligent conduct on the defendant's part, the conduct of the plaintiff was so reckless that it constituted an unforeseeable superseding event sufficient to break the causal chain" ( Butler v Marshall, 243 AD2d 971, 973). Thus, a plaintiff's familiarity with a natural body of water together with the knowledge that the water level fluctuated has been held to be the sole legal cause of injuries arising from an ill-fated dive into shallow water ( Olsen v Town of Richfield, 81 NY2d 1024). The same result obtains when "[b]y virtue of [his] general knowledge of pools, his observations prior to the accident, and plain common sense, plaintiff must have known that, if he dove into the pool, the area into which he dove contained shallow water" ( Smith v Stark, 67 NY2d 693, 694; Howard v Poseidon Pools, 72 NY2d 972; Boltax v Joy Day Camp, 67 NY2d 617).
The claimant visited Colgate Lake and dove from the spillway frequently over the five-year period preceding his accident. Claimant testified that he was aware that water would sometimes flow through the spillway of the dam and at other times it would not. In fact, the claimant testified that he observed that no water was flowing through the spillway prior to his dive into the lake on September 4, 2005. Given the extent of his prior experience at Colgate Lake, his awareness of the intermittent nature of the flow of water through the spillway and the unrefuted testimony that water levels varied up or down during the summer months depending upon the amount of precipitation, claimant knew or should have known that the depth of Colgate Lake fluctuated. Claimant also knew or should have known that the water in front of the spillway was shallow in light of the fact that, according to measurements taken by claimants' counsel, "the westerly side of the crest of the eastern spillway of the dam is four feet (4') above the lake bottom at the face of the dam" (Affirmation of Stephen Weingrad, Esquire ¶ 4). In other words, when water is not flowing through the spillway the depth of Colgate Lake near the face of the eastern spillway from which the claimant dove on the date of his accident was never greater than four feet. In addition, according to the New York State Morphometric Atlas of Selected Lakes (relied on by both parties) the mean depth of the lake is only 4.6 feet.These facts establish, in light of the claimant's experience at Colgate Lake, that he knew both that the area in front of the spillway was shallow and that the precise depth at any particular time varied.
Although claimant was less than precise in describing the manner of his dive from the spillway, Lois Keegan was quite clear when describing her observations of the claimant's actions in her affidavit in which she states: "[T]his man didn't hesitate, he walked right to the edge of the spillway, pulled his shirt off, and dove headfirst into the water" (defendant's Exhibit K, Affidavit of Lois Keegan, p. 2) . Such conduct by a person who, based upon his substantial prior experience, knew or should have known both that Colgate Lake was shallow and that the actual depth of the lake fluctuated constitute, as a matter of law, "an intervening act which was so extraordinary or far removed from the defendant's conduct as to be unforeseeable" ( Meseck v General Elec. Co., 195 AD2d 798, 800; Haughton v T J Elec. Corp., 309 AD2d 1007, lv denied 1 NY3d 508 (2004) thus entitling the defendant to summary judgment in its favor.
Claimant's testimony at his examination before trial in which he states he had "no clue" as to the depth of the water at the eastern spillway at the time of his ill-fated dive provides additional support for the granting of defendant's motion. Despite his long experience swimming at Colgate Lake and diving from the spillway, notwithstanding his awareness that water levels at the lake fluctuated and in spite of his observation that water was not flowing through the spillway immediately prior to diving, the claimant failed to determine the level of the lake before entering the water. Furthermore, claimant stated in his affidavit that because the water was "dark" he was unable to see the lake bottom prior to diving.A headfirst dive into "dark" water without first determining its depth is clearly reckless conduct in circumstances, such as those present here, where the claimant was aware that the water level of the lake fluctuated ( see Lionarons v General Elec. Co., 215 AD2d 851, affd 86 NY2d 832; Butler v Marshall, supra; Mortis v Dittl, 275 AD2d 940; Johnson v Harrington, 215 AD2d 857, lv denied 87 NY2d 802). This is particularly true where the claimant, through long experience at the accident site, knew that the water was shallow. The fact that the claimant and others had successfully completed dives from the spillway of the dam on prior occasions does not render claimant's conduct any less reckless or more foreseeable ( see Egan v A.J. Constr. Corp., 94 NY2d 839, 842).
Although the proof established that leaks in the dam were a continuing and long-standing problem, the claimants failed to submit proof, expert or otherwise, that the rate at which the water leaked from the dam was any greater in September 2005 than it was on the many occasions Mr. Tkeshelashvili was at Colgate Lake during the preceding five year period. While claimants established that the dam at the lake had been leaking since at least 1976 (claimants' Volume Two of Eight, Envelope No. 4, Bates 328, 343), they failed to establish that the shallow depth of the water was a condition different in kind than those with which the claimant was familiar ( cf. Searles v Town of Horicon, 116 AD2d 93). Accordingly, the fact that the dam leaked for over 30 years and was leaking in September 2005 does nothing to negate the claimant's familiarity with the fluctuating water level of the lake and the dangers associated with diving into shallow water.
Based on the foregoing, defendant's motion for summary judgment dismissing the claim is granted, and the claimants' motion for summary judgment is denied.