Lamandia-Cochi v. Tulloch

305 A.D.2d 1062, 759 N.Y.S.2d 411, 2003 N.Y. App. Div. LEXIS 4821

Opinion

—Appeal from an order of Supreme Court, Oneida County (Shaheen, J.), entered November 9, 2001, which granted defendants’ motion for summary judgment dismissing the amended complaint and denied plaintiffs cross motion for summary judgment.

It is hereby ordered that the order so appealed from be and the same hereby is unanimously affirmed without costs.

Memorandum: Plaintiff commenced this negligence action seeking to recover damages for injuries sustained by her 13-year-old son when he fell while attempting to slide down a IV2inch by HA-inch wooden handrail adjacent to the porch steps of a residence allegedly owned by defendants. Supreme Court properly granted defendants’ motion for summary judgment dismissing the amended complaint based on the doctrine of primary assumption of risk. The record establishes that, in attempting to slide down the handrail, plaintiffs son was aware of and voluntarily assumed the risk of that activity, including the risk that the handrail might bend or shift beneath him (see Davis v Kellenberg Mem. High School, 284 AD2d 293 [2001]; see also Morgan v State of New York, 90 NY2d 471, 484 [1997]; Turcotte v Fell, 68 NY2d 432, 439 [1986]; Bierach v Nichols, 248 AD2d 916 [1998]; cf. Utkin v Rademacher, 261 AD2d 840 [1999], lv dismissed 94 NY2d 796 [1999]). Present — Pigott, Jr., P.J., Hurlbutt, Scudder, Lawton and Hayes, JJ.