Adornato v. Town of Smithtown

212 A.D.2d 561, 622 N.Y.S.2d 563, 1995 N.Y. App. Div. LEXIS 1516

Opinion

—In a negligence action to recover damages for personal injuries, the defendant County of Suffolk appeals from an order of the Supreme Court, Suffolk County (Gowan, J.), entered September 28, 1993, which denied its motion for summary judgment dismissing the complaint insofar as it is asserted against it.

Ordered that the order is reversed, on the law, with costs, the motion is granted, and the complaint is dismissed insofar as it is asserted against the defendant County of Suffolk.

The plaintiff injured his foot when, while rope-swinging from a tree into a river, he landed in shallow water. The evidence presented with respect to the motion of the defendant County of Suffolk for summary judgment establishes that the sole legal cause of the plaintiff’s accident was the plaintiff’s reckless conduct. The plaintiff’s testimony at his deposition and at a hearing pursuant to General Municipal Law § 50-h established that the plaintiff was familiar with the depth of the water, both by being in it prior to the accident and by observing other swimmers. Accordingly, the County was entitled to summary judgment dismissing the complaint insofar as it is asserted against it (see, Olsen v Town of Richfield, 81 NY2d 1024; Rowell v Town of Hempstead, 186 AD2d 553). Ritter, J. P., Pizzuto, Friedmann and Goldstein, JJ., concur.