Almeida-Kulla v. Deep Hollow Ltd.
| Decision Date | 18 October 2019 |
| Docket Number | Index No. 154754/2016 |
| Citation | 2019 NY Slip Op 33140 (U) |
| Parties | LORI ALMEIDA-KULLA and MICHAEL KULLA, Plaintiffs v. DEEP HOLLOW LTD. d/b/a DEEP HOLLOW RANCH STABLE, "JANE DOE" (name being fictitious), an employee of DEEP HOLLOW LTD., DEEP HOLLOW RANCH CORP., and DEEP HOLLOW CORP. Defendants |
| Court | New York Supreme Court |
For Plaintiffs
Daniel Flanzig Esq.
Flanzig & Flanzig, LLP
323 Willis Avenue, Mineola, NY 11501
Joseph S. Fritzson Esq.
Sobel Pevzner, LLC
30 Vesey Street, New York, NY 10007
I. BACKGROUND
Plaintiff Almeida-Kulla sues for injuries she sustained April 30, 2016, after falling from a horse owned by defendant Deep Hollow Corp. as Almeida-Kulla was participating in its guided horseback ride. Plaintiff Kulla, her husband, claims derivatively for loss of Almeida-Kulla's services and society Plaintiffs move to dismiss defendants' affirmative defenses pertaining to Almeida-Kulla's assumption of risk and culpable conduct, C.P.L.R. § 3211(b); for summary judgment on defendants' liability, C.P.L.R. § 3212(b) and (e); and for a finding that Deep Hollow's agreement and release is unenforceable because it exempts Deep Hollow from liability for the negligence of Deep Hollow's employees. C.P.L.R. §§ 3001, 3212(b) and (e); N.Y. Gen. Oblig. Law § 5-326. Defendants separately move for summary judgment dismissing the amended complaint. C.P.L.R. § 3212(b). For the reasons explained below, the court grants plaintiffs' motion in part and denies defendants' motion.
II. UNDISPUTED FACTS
On April 30, 2016, plaintiffs' family, together with another family, visited Deep Hollow's ranch for a guided horseback ride of 90 minutes. Plaintiffs' riding group comprised four adults with their four young children led by a trail guide, Olga Goworek. Before departing on the ride, Almeida-Kulla signed Deep Hollow's Rental Agreement and Liability Release, which Deep Hollow concedes does not waive its liability for its employees' negligence.
Near the end of plaintiffs' ride and in sight of the stable, their riding group stalled and was holding up another riding group behind, because one of the children's horses in plaintiffs' group began grazing. The other group's trail guide, Francesca Keogh, dismounted her horse to attend to the grazing horse in plaintiffs' group. Plaintiffs' group members all remained on their horses. During this wait, Keogh's horse suddenly ran off toward the stable. Aff. of Daniel Flanzig Ex. F, at 25, 39; Aff. of Joseph S. Fritzson Ex. J, at 25, 39. Plaintiffs' group of horses likewise started to run uncontrolled in the same direction. Because Almeida-Kulla was unable to control her horse, she fell from her horse and sustained fractures of her clavicle, scapula, and ribs as well as a long contusion and pneumothorax.
III. DISPUTED FACTS
The parties dispute three factual issues material to the parties' respective motions. First, the parties dispute whether Deep Hollow's trail guide Keogh, who was leading the group of riders behind plaintiffs' group, secured her horse adequately, if at all, after dismounting to assist one of the children in plaintiffs' group of stalled riders. Second, the parties dispute the sequence in which the horses ran back to the stable, specifically whether Keogh's horse first ran off, causing plaintiffs' group of horses to follow the guide horse, or plaintiffs' group of horses departed before or simultaneously with Keogh's horse. Third, the parties dispute whether Almeida-Kulla was holding her reins tightly when her horse began running back to the stable. Although the parties also dispute whether the two groups of riders merged and the significance of such a merger and whether a cause external to the groups spooked or scared the horses, these factual questions do not materially bear on the parties' motions.
IV. STANDARDS FOR SUMMARY JUDGMENT AND FOR DISMISSAL OF DEFENSES
To obtain summary judgment, the moving parties must make a prima facie showing of entitlement to judgment as a matter of law, through admissible evidence eliminating all material issues of fact. C.P.L.R. § 3212(b); Friends of Thayer Lake LLC v. Brown, 27 N.Y.3d 1039, 1043 (2016); Nomura Asset Capital Corp. v. Cadwalader, Wickersham & Taft LLP, 26 N.Y.3d 40, 49 (2015); Voss v. Netherlands Ins. Co., 22 N.Y.3d 728, 734 (2014); Vega v. Restani Constr. Corp., 18 N.Y.3d 499, 503 (2012). Only if the moving parties satisfy this standard does the burden shift to the opposing parties to rebut that prima facie showing by producing evidence, in admissible form, sufficient to require a trial of material factual issues. De Lourdes Torres v. Jones, 26 N.Y.3d 742, 763 (2016); Nomura Asset Capital Corp. v. Cadwalader Wickersham & Taft LLP, 26 N.Y.3d at 49; Morales v. D & A Food Serv., 10 N.Y.3d 911, 913 (2008); Hyman v. Queens County Bancorp, Inc., 3 N.Y.3d 743, 744 (2004).
In evaluating the evidence for purposes of the parties' motions, the court construes the evidence in the light most favorable to the opponents. Stonehill Capital Mgt. LLC v. Bank of the W., 28 N.Y.3d 439, 448 (2016); De Lourdes Torres v. Jones, 26 N.Y.3d at 763; William J. Jenack Estate Appraisers & Auctioneers, Inc. v. Rabizadeh, 22 N.Y.3d 470, 475 (2013); Vega v. Restani Constr. Corp., 18 N.Y.3d at 503. If the moving parties fail to meet their initial burden, the court must deny them summary judgment despite any insufficiency in the opposition. Voss v. Netherlands Ins. Co., 22 N.Y.3d at 734; Vega v. Restani Constr. Corp., 18 N.Y.3d at 503; Smalls v. AJI Indus., Inc., 10 N.Y.3d 733, 735 (2008); JMD Holding Corp. v. Congress Fin. Corp., 4 N.Y.3d 373, 384 (2005).
Plaintiffs also move to dismiss the first, second, fifth, tenth, eleventh, and twelfth affirmative defenses, which pertain to Almeida-Kulla's assumption of risk and culpable conduct, in defendants' answer to the amended complaint. C.P.L.R. § 3211(b). The court may dismiss affirmative defenses if they are without merit. C.P.L.R. § 3211(a)(7) and (b). Upon plaintiffs' motion to dismiss affirmative defenses, however, it is not defendants' burden to establish their defenses by admissible evidence, but plaintiffs' burden to establish that the defenses are legally inapplicable. Pugh v. New York City Hous. Auth., 159 A.D.3d 643, 643 (1st Dep't 2018); Granite State Ins. Co. v. Transatlantic Reins. Co., 132 A.D.3d 479, 481 (1st Dep't 2015); Calpo-Rivera v. Siroka, 144 A.D.3d 568, 568 (1st Dep't 2016); 534 E. 11th St. Hous. Dev. Fund Corp. v. Hendrick, 90 A.D.3d 541, 542 (1st Dep't 2011). To defeat plaintiffs' motion to dismiss affirmative defenses, defendants only need allege the defenses' factual elements, whether in the answer to the amended complaint or by supplementing the answer with affidavits or other admissible evidence". Pugh v. New York City Hous. Auth., 159 A.D.3d at 643; Granite State Ins. Co. v. Transatlantic Reins. Co., 132 A.D.3d at 481; 534 E. 11th St. Hous. Dev. Fund Corp. v. Hendrick, 90 A.D.3d at 542.
V. DEFENDANTS' MOTION FOR SUMMARY JUDGMENT
Defendants rely on Almeida-Kulla's deposition testimony to set forth a prima facie showing that Almeida-Kulla assumed the risks inherent in horseback riding. Morgan v. State of New York, 90 N.Y.2d 471, 484 (1997); Valverde v. Great Expectations, LLC, 131 A.D.3d 425, 426 (1st Dep't 2015); Tadmor v. New York Jiu Jitsu Inc., 109 A.D.3d 440, 441 (1st Dep't 2013). She admitted that before departing on the horseback ride she signed Deep Hollow's Rental Agreement and Liability Release, which includes her initials at every paragraph and signature at the end and provides that she assumed the risks of participating in this activity. Tindall v. Ellenberg, 281 A.D.2d 225, 225 (1st Dep't 2001).
Defendants also point to Almeida-Kulla's use of a helmet and her insistence that her children also wear helmets, even though helmets were not required, as indicating her assumption of the risks involved. New York General Business Law § 396-dd, however, mandated that Deep Hollow provide helmets to all minors and to all beginning riders, which is how Almeida-Kulla described herself to defendants and how they admitted they considered her. Defendants' deposition witness further admitted her awareness that helmets were required "by law" at least for minors. Fritzson Aff. Ex. J, at 15.
Consistent with the standards outlined above, the court must deny defendants' motion for summary judgment based on assumption of the risk if the evidence raises factual questions whether defendants concealed or unreasonably heightened the risk of harm beyond the usual risks inherent in the sporting activity that plaintiffs undertook. Morgan v. State of New York, 90 N.Y.2d at 485; Madsen v. Catamount Ski Resort, 165 A.D.3d 475, 475 (1st Dep't 2018); Zelkowitz v. Country Group, Inc., 142 A.D.3d 424, 427 (1st Dep't 2016). By raising factual issues material to whether Almeida-Kulla assumed the risk of riding her horse under the circumstances plaintiffs describe, they rebut defendants' showing and defeat their motion for summary judgment.
Plaintiffs' claims do not rest solely on the horses having acted in an unexpected manner, which may cause the riders to be thrown and is a risk inherent in horseback riding. E.g., Blumenthal v. Bronx Equestrian Ctr., Inc., 137 A.D.3d 432, 432 (1st Dep't 2016); Stanislav v. Papp, 78 A.D.3d 556, 556-57 (1st Dep't 2010). Plaintiffs claim that the intervening negligence by Deep Hollow's trail guide in failing to secure her guide horse, which consequently ran off to the stable, prompting Almeida-Kulla's horse and the other nearby horses to follow the guide horse, caused Almeida-Kulla to fall from her horse.
While Almeida-Kulla may have assumed the risks...
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