Macisaac v. Nassau Cnty., 2016-03065, Index No. 6575/13.

• Decision Date: 26 July 2017
• Docket Number: 2016-03065, Index No. 6575/13.
• Citation: 152 A.D.3d 758,60 N.Y.S.3d 64
• Parties: Patricia R. MacISAAC, as administratrix of the estate of John R. MacIsaac, deceased, and Patricia R. MacIsaac, individually, appellant, v. NASSAU COUNTY, respondent.
• Court: New York Supreme Court — Appellate Division

152 A.D.3d 758

60 N.Y.S.3d 64

Patricia R. MacISAAC, as administratrix of the estate of John R. MacIsaac, deceased, and Patricia R. MacIsaac, individually, appellant,

v.NASSAU COUNTY, respondent.

2016-03065, Index No. 6575/13.

Supreme Court, Appellate Division, Second Department, New York.

July 26, 2017.

Pontisakos & Brandman, P.C., Garden City, NY (Elizabeth Mark Meyerson of counsel), for appellant.

Carnell T. Foskey, County Attorney, Mineola, NY (Christi Marie Kunzig of counsel), for respondent.

WILLIAM F. MASTRO, J.P., MARK C. DILLON, SHERI S. ROMAN, and VALERIE BRATHWAITE NELSON, JJ.

In an action, inter alia, to recover damages for wrongful death, etc., the plaintiff appeals from an order of the Supreme Court, Nassau County (Sher, J.), entered February 8, 2016, which granted the defendant's motion for summary judgment dismissing the complaint.

ORDERED the order is reversed, on the law, with costs, and the defendant's motion for summary judgment dismissing the complaint is denied.

On August 9, 2012, John R. MacIsaac (hereinafter the decedent) was walking from the 12th green to the 13th tee box on a golf course at Eisenhower Park when he allegedly tripped on a sprinkler system coupling valve in a grass-covered hole, causing him to fall to the ground and sustain injuries which ultimately led to his death. The plaintiff, as administratrix of the decedent's estate, and individually, commenced this action against the defendant, which owned the premises, alleging, inter alia, wrongful death. The defendant moved for summary judgment dismissing the complaint on the ground, among others, that the plaintiff's claims were barred by the doctrine of primary assumption of risk. The Supreme Court granted the defendant's motion. We reverse.

Under the doctrine of primary assumption of risk, "by engaging in a sport or recreational activity, a participant consents to those commonly appreciated risks which are inherent in and arise out of the nature of the sport generally and flow from such participation" ( Morgan v. State of New York, 90 N.Y.2d 471, 484, 662 N.Y.S.2d 421, 685 N.E.2d 202 ). This includes risks associated with the construction of the playing surface and any open and obvious condition on it (see Ziegelmeyer v. United States Olympic Comm., 7 N.Y.3d 893, 894, 826 N.Y.S.2d 598, 860 N.E.2d 60 ; Sykes v. County of Erie, 94 N.Y.2d 912, 913, 707 N.Y.S.2d 374, 728 N.E.2d 973 ; Maddox v. City of New York, 66 N.Y.2d 270, 277, 496 N.Y.S.2d 726, 487 N.E.2d 553 ; Simon v. Hamlet Windwatch Dev., LLC, 120 A.D.3d 657, 657–658, 990 N.Y.S.2d 870 ; Galski v. State of New York, 289 A.D.2d 195, 196, 733 N.Y.S.2d 695 ).

The defendant established its prima facie entitlement to judgment as a matter of law on the ground that the doctrine of primary assumption of risk applied (see Sykes v. County of Erie, 94 N.Y.2d at 913, 707 N.Y.S.2d 374, 728 N.E.2d 973 ; Simon v. Hamlet Windwatch Dev., LLC, 120 A.D.3d at 657–658, 990 N.Y.S.2d 870 ; Galski v. State of New York, 289 A.D.2d at 196, 733 N.Y.S.2d 695 ).

However, in opposition, the plaintiff raised a triable issue of fact as to whether the subject condition was concealed or unreasonably increased the risks inherent in the golf course (see Morgan v. State of New York, 90 N.Y.2d at 485, 662 N.Y.S.2d 421, 685 N.E.2d 202 ; Simone v. Doscas, 142 A.D.3d 494,...