Morella v. Fletcher Farm At The Ketcham Homestead

288 A.D.2d 447, 733 N.Y.S.2d 891, 2001 N.Y. App. Div. LEXIS 11416

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: November 26, 2001
• Status: Published

Opinion

—In an action to recover damages for personal injuries, etc., the defendant appeals, as limited by its brief, from so much of an order of the Supreme Court, Suffolk County (Seidell, J.), dated September 19, 2000, as, upon reargument, denied that branch of its motion which was for summary judgment dismissing the cause of action sounding in negligence, and the plaintiffs cross-appeal, as limited by their brief, from so much of the same order as granted that branch of the defendant’s motion which was for summary judgment dismissing their cause of action sounding in breach of warranty and denied their cross motion to dismiss the defendánt’s affirmative defense based on a purported written release.

Ordered that the order is affirmed, without costs or disbursements.

The plaintiffs commenced this action to recover damages for personal injuries, etc., after the plaintiff Lynda Morella was allegedly thrown from a horse and injured while taking riding lessons at the defendant’s premises. The Supreme Court, inter alia, denied that branch of the defendant’s motion which was for summary judgment dismissing the cause of action sounding in negligence. We affirm.

In support of its motion for summary judgment, the defendant failed to make a prima facie demonstration of entitlement to judgment as a matter of law on its argument that the damages alleged arose from appreciated risks inherent in horseback riding that were voluntarily assumed by the injured plaintiff (see, Morgan v State of New York, 90 NY2d 471; Irish v Deep Hollow, 251 AD2d 293). Thus, summary judgment was properly denied.

The parties’ remaining contentions are without merit. Ritter, J. P., Friedmann, Florio and Cozier, JJ., concur.