Mor v. Yakov
| Decision Date | 14 December 1998 |
| Citation | 681 N.Y.S.2d 586,256 A.D.2d 393 |
| Parties | 1998 N.Y. Slip Op. 11,035 Rachel MOR, etc., et al., Plaintiffs-Respondents, v. Yeshiva Yesode Hatorah Nachlals YAKOV d/b/a Viener Day Camp, Defendant-Respondent, United Skates of America, Appellant. (And A Third-Party Action.) |
| Court | New York Supreme Court — Appellate Division |
Aliano, Aliano & Aliano, Westbury, N.Y. (Robert J. Aliano of counsel), for appellant.
Goidel & Siegel, LLP, New York, N.Y. (Jonathan M. Goidel of counsel), for plaintiffs-respondents.
Before MILLER, J.P., and COPERTINO, THOMPSON and FRIEDMANN, JJ.
MEMORANDUM BY THE COURT.
In an action to recover damages for personal injuries, etc., the defendant United Skates of America appeals, as limited by its brief, from so much of an order of the Supreme Court, Kings County (Rappaport, J.), dated October 6, 1997, as denied its motion for summary judgment dismissing the complaint and all cross claims insofar as asserted against it.
ORDERED that the order is reversed insofar as appealed from, on the law, with costs, the motion is granted, and the complaint and all cross claims are dismissed insofar as asserted against the appellant.
Whether measured against New Jersey standards (see, N.J. Stat. Annot. § 5:14-6, 7; cf., Calhanas v. South Amboy Roller Rink, 292 N.J.Super. 513, 679 A.2d 185) or those under New York law (see, Morgan v. State of New York, 90 N.Y.2d 471, 662 N.Y.S.2d 421, 685 N.E.2d 202), the injured plaintiff must be deemed to have assumed the risk of losing her balance and falling while roller skating at the appellant's roller skating rink, located in New Jersey (see, Sorice v. Captree Homes, Ltd., 250 A.D.2d 755, 672 N.Y.S.2d 254; see also, Maddox v. City of New York, 66 N.Y.2d 270, 496 N.Y.S.2d 726, 487 N.E.2d 553). Contrary to the plaintiffs' contentions, their submissions on the appellant's motion for summary judgment dismissing the complaint and all cross claims insofar as asserted against it, failed to raise issues of fact with respect to the claim that the appellant enhanced the risks inherent in the sport (see, Kazlow v. City of New York, 253 A.D.2d 411, 676 N.Y.S.2d 229; Loewenthal v. Catskill Funland, 237 A.D.2d 262, 654 N.Y.S.2d 169; cf., Baker v. Briarcliff School Dist., 205 A.D.2d 652, 613 N.Y.S.2d 660).
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