Berfas v. Town of Oyster Bay

Appellate Division of the Supreme Court of New York

Berfas v. Town of Oyster Bay

286 A.D.2d 466, 729 N.Y.S.2d 530, 2001 N.Y. App. Div. LEXIS 8305

CourtAppellate Division of the Supreme Court of the State of New York

DecidedAugust 27, 2001

StatusPublished

Cited by9 cases

This text of 286 A.D.2d 466 (Berfas v. Town of Oyster Bay) is published on Counsel Stack Legal Research, covering Appellate Division of the Supreme Court of the State of New York primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Berfas v. Town of Oyster Bay, 286 A.D.2d 466, 729 N.Y.S.2d 530, 2001 N.Y. App. Div. LEXIS 8305 (N.Y. Ct. App. 2001).

Pincite

Opinion

—In an action to recover damages for personal injuries, etc., the defendant appeals from an order of the Supreme Court, Nassau County (Burke, J.), dated October 16, 2000, which denied its motion for summary judgment dismissing the complaint.

Ordered that the order is affirmed, with costs.

The injured plaintiff (hereinafter the plaintiff) allegedly was injured while riding a bicycle in the defendant Town of Oyster Bay when he hit a rut in the road and was thrown from the bicycle to the ground. The defendant moved for summary judgment dismissing the complaint, arguing that the plaintiff assumed the risk of encountering all open and obvious conditions in the road and, thus, it was not liable for his injuries. The Supreme Court properly denied the defendant’s motion.

The defendant has failed to establish, as a matter of law, that the action is barred by the doctrine of primary assumption of the risk (see, Turcotte v Fell, 68 NY2d 432, 437-439; Weller v Colleges of Senecas, 217 AD2d 280). The plaintiff was riding a bicycle on a paved road. He testified at his deposition that he did not recall riding in the area where he fell prior to his accident and, therefore, he was unaware of the defect in the road. He also testified that the rut was not discernible from any distance before the accident. Furthermore, the photographs submitted by the defendant in support of the motion failed to establish conclusively that the condition of the road was open and obvious.

Under the particular circumstances of this case, there are issues of fact as to whether the doctrine of primary assumption of the risk is applicable to riding a bicycle on a paved road (cf., Schiavone v Brinewood Rod & Gun Club, 283 AD2d 234; Calise v City of New York, 239 AD2d 378), and whether the condition of the road was open and obvious (see, Warren v Town of Hempstead, 246 AD2d 536, 537). O’Brien, J. P., Krausman, Gold-stein, Schmidt and Crane, JJ., concur.

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—In an action to recover damages for personal injuries, etc., the defendant appeals from an order of the Supreme Court, Nassau County (Burke, J.), dated October 16, 2000, which denied its motion for summary judgment dismissing the complaint.

Ordered that the order is affirmed, with costs.

The injured plaintiff (hereinafter the plaintiff) allegedly was injured while riding a bicycle in the defendant Town of Oyster Bay when he hit a rut in the road and was thrown from the bicycle to the ground. The defendant moved for summary judgment dismissing the complaint, arguing that the plaintiff assumed the risk of encountering all open and obvious conditions in the road and, thus, it was not liable for his injuries. The Supreme Court properly denied the defendant’s motion.

The defendant has failed to establish, as a matter of law, that the action is barred by the doctrine of primary assumption of the risk (see, Turcotte v Fell, 68 NY2d 432, 437-439; Weller v Colleges of Senecas, 217 AD2d 280). The plaintiff was riding a bicycle on a paved road. He testified at his deposition that he did not recall riding in the area where he fell prior to his accident and, therefore, he was unaware of the defect in the road. He also testified that the rut was not discernible from any distance before the accident. Furthermore, the photographs submitted by the defendant in support of the motion failed to establish conclusively that the condition of the road was open and obvious.

Under the particular circumstances of this case, there are issues of fact as to whether the doctrine of primary assumption of the risk is applicable to riding a bicycle on a paved road (cf., Schiavone v Brinewood Rod & Gun Club, 283 AD2d 234; Calise v City of New York, 239 AD2d 378), and whether the condition of the road was open and obvious (see, Warren v Town of Hempstead, 246 AD2d 536, 537). O’Brien, J. P., Krausman, Gold-stein, Schmidt and Crane, JJ., concur.

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Bluebook (online)

286 A.D.2d 466, 729 N.Y.S.2d 530, 2001 N.Y. App. Div. LEXIS 8305, Counsel Stack Legal Research, https://law.counselstack.com/opinion/berfas-v-town-of-oyster-bay-nyappdiv-2001.

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