Stanger v. M & T Pretzel, Inc.

5 A.D.3d 471, 772 N.Y.S.2d 571

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: March 8, 2004
• Status: Published

Opinion

In an action to recover damages for personal injuries, the plaintiff appeals from an order and judgment (one paper) of the Supreme Court, Kings County (Schmidt, J.), dated December 6, 2002, which granted the defendant’s motion for summary judgment dismissing the complaint, and dismissed the complaint.

Ordered that the order and judgment is affirmed, with costs.

The defendant established its entitlement to judgment as a matter of law by demonstrating that the plaintiff, an experienced ice skater, voluntarily continued to skate despite the alleged defective condition of the skating rink surface, and thus assumed the risk (see Morgan v State of New York, 90 NY2d 471 [1997]; Rensing v Iceland, Inc., 276 AD2d 614 [2000]; Lo Piccolo v Town of Oyster Bay, Dept. of Parks, 260 AD2d 606 [1999]; Byrne v Westchester County, 178 AD2d 575 [1991]). In opposition, the plaintiff failed to raise a triable issue of fact. Therefore, the Supreme Court properly granted the defendant summary judgment dismissing the complaint.

The plaintiffs remaining contentions are without merit. S. Miller, J.P., Luciano, Adams and Cozier, JJ., concur.