Plate v. City of Rochester

217 A.D.2d 984, 629 N.Y.S.2d 600, 1995 N.Y. App. Div. LEXIS 8421

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: July 14, 1995
• Status: Published

Opinion

Order unanimously affirmed without costs. Memorandum: Plaintiff commenced this action against, inter alia, the City of Rochester, the County of Monroe and Frank L. Ciminelli Construction Co., Inc. (defendants) to recover for injuries he sustained when he fell off a cliff into the Genesee River gorge in May 1987. We conclude that Supreme Court properly granted summary judgment dismissing the complaint. As an initial matter, we note that plaintiff was not entitled to be held to a lesser burden of persuasion in establishing a prima facie case of negligence; he failed to provide an expert’s affidavit concerning his alleged amnesia (see, Sawyer v Dreis & Krump Mfg. Co., 67 NY2d 328).

Plaintiff failed to raise an issue of fact whether defendants were negligent or whether he assumed the risk. Defendants had no duty to erect barriers or warning signs in the area because the gorge was an open and obvious natural geographic phenomenon and plaintiff was fully familiar with its dangers (see, Diven v Village of Hastings-On-Hudson, 156 AD2d 538). Plaintiff testified at his deposition that he had been to that area hundreds of times both during the day and night and was familiar with the cliff at the end of the gorge. We conclude that plaintiff’s act of running along the cliff’s edge in the dark was the sole proximate cause of the accident (see, Tarricone v State of New York, 175 AD2d 308, 310, lv denied 78 NY2d 862; Pizzola v State of New York, 130 AD2d 796, 798).

In light of our conclusion, it is not necessary to address plaintiff’s remaining contention. (Appeal from Order of Supreme Court, Monroe County, Kehoe, J.—Summary Judgment.) Present—Pine, J. P., Fallon, Doerr, Balio and Boehm, JJ.