Rosenbaum v. Bayis Ne'Emon, Inc.

• Decision Date: 29 August 2006
• Docket Number: 2005-08688.
• Citation: 820 N.Y.S.2d 326,32 A.D.3d 534,2006 NY Slip Op 06329
• Parties: MOSHE ROSENBAUM et al., Respondents, v. BAYIS NE'EMON, INC., Doing Business as CAMP ESTHER, Appellant, et al., Defendant.
• Court: New York Supreme Court — Appellate Division

32 A.D.3d 534

820 N.Y.S.2d 326

2006 NY Slip Op 06329

MOSHE ROSENBAUM et al., Respondents, v.BAYIS NE'EMON, INC., Doing Business as CAMP ESTHER, Appellant, et al., Defendant.

2005-08688.

Appellate Division of the Supreme Court of the State of New York, Second Department.

August 29, 2006.

In an action to recover damages for personal injuries, etc., the defendant Bayis Ne'Emon, Inc., doing business as Camp Esther appeals from an order of the Supreme Court, Kings County (Schneier, J.), dated June 17, 2005, which denied its motion for summary judgment dismissing the complaint insofar as asserted against it.

Ordered that the order is affirmed, with costs.

The plaintiffMoshe Rosenbaum(hereinafter the plaintiff) was injured when his foot slipped into a hole while playing a game of badminton on premises owned by the defendantBayis Ne'Emon, Inc., doing business as Camp Esther (hereinafter the appellant).The Supreme Court denied the appellant's motion for summary judgment dismissing the complaint insofar as asserted against it based on the doctrine of assumption of risk.We affirm.

"Participants in sporting events may be held to have consented to injury-causing events which are the known, apparent, or reasonably foreseeable risks of their participation"(Colucci v Nansen Park,226 AD2d 336[1996];see alsoTurcotte v Fell,68 NY2d 432, 439[1986];Manoly v City of New York,29 AD3d 649[2006]).However, the doctrine of assumption of risk will not serve as a bar to liability if the risk is "unassumed, concealed, or unreasonably increased"(Lapinski v Hunter Mtn. Ski Bowl,306 AD2d 320, 321[2003]).

Here, the appellant failed to make a prima facie showing of entitlement to judgment as a matter of law (see generallyAlvarez v Prospect Hosp.,68 NY2d 320[1986]).The record indicates that at least a portion of the subject hole was concealed by an object which has been described by witnesses as being either a cesspool cover or a...