Anthony v. Firehock

2021 NY Slip Op 33181(U)

NANCY ANTHONY, Plaintiff, v. AMBER FIREHOCK, CHRISTINE FIREHOCK, KARI MARINUCC,, SHAY DIVITTORIO, LEGENDALE STABLES and HORSE SENSE, Defendants.

Index No.2018-52752

Supreme Court, Dutchess County

March 26, 2021

Unpublished Opinion

DECISION AND ORDER

CHRISTI J. ACKER, J.S.C.

The following papers numbered 1-36 were considered in connection with the motion by Defendants Amber Firehock and Christine Firehock (hereinafter "Defendant Amber" and "Defendant Christine" respectively and "Defendants" collectively) for an Order pursuant to CPLR 3212 granting them summary judgment and dismissing Plaintiffs Amended Complaint:

Notice of Motion-Affirmation of Jeffrey D. Sherwin Esq.-Exhibits A-M-

Memorandum of Law in Support...................................................................................1-16

Affirmation in Opposition of Levi Lipton, Esq.-Exhibits A-Q....................................17-34

Reply Affirmation of Jeffrey D. Sherwin, Esq.-Affidavit of Shay McCormack..........35-36

This action was commenced by Plaintiff Nancy Anthony ("Plaintiff) on or about August 31, 2018 and an Amended Complaint was thereafter filed on January 17, 2019. It is alleged that Plaintiff was injured on November 15, 2018 during a horseback riding lesson with Defendant Amber. The Amended Complaint asserts three causes of action against Defendants:^[1] Negligence, Negligent Misrepresentation and Strict Liability.

Facts

In or about September 2017, Plaintiff was driving on Creek Road in Hyde Park when she saw a sign advertising horseback riding lessons. The next day, she drove up the adjacent driveway to inquire about the lessons and when she reached the buildings at the end, she met Defendant Christine. Plaintiff told Defendant Christine that she wanted to take riding lessons and Defendant Christine advised that her daughter Amber was the instructor. Plaintiff gave Defendant Christine her telephone number and, according to Plaintiff, this was the sum and substance of the only conversation that she had with Defendant Christine.

The next day, Defendant Amber called Plaintiff and they agreed that Plaintiff would start taking lessons. When she met Defendant Amber in person, Plaintiff signed up for a package of six lessons arid paid Amber by check. Plaintiff told Defendant Amber that she was a beginner and that she had taken a few lessons approximately 25 years ago. On that same day, Plaintiff signed an "Equine Activity Release and Hold Harmless Agreement" (hereinafter referred to as "Release"). Although Plaintiff denies having read the Release, she acknowledges that she wrote her name on the first page and signed and dated the last page.

Prior to the incident at issue herein, Plaintiff had taken seven riding lessons with Defendant Amber while riding Amber's horse, Pilot. While the parties dispute the specifics of what occurred during these seven lessons, both agree that after completing six lessons, Plaintiff immediately signed up for a package of another six lessons.

On the day of her eighth lesson, Defendant Amber took Plaintiff out on a trail ride on Pilot. After approximately 10-15 minutes out on the trail, Pilot began to gallop back to the barn. The parties again have differing renditions about the interaction between Plaintiff and Defendant Amber^[2] and what caused Pilot to take off, but one fact remains uncontested: Plaintiff consciously chose to jump off the horse while it was running back to the barn. See Plaintiffs deposition transcript, pp. 181-183.

Defendants now move for summary judgment to dismiss the Amended Complaint. With respect to the claims against Defendant Christine, Defendants assert that there is no proof of culpable conduct by said Defendant. As to Defendant Amber, Defendants allege that Plaintiffs claims are barred by the Release that Plaintiff signed and that Plaintiffs claims against Amber are also subject to dismissal based upon the doctrine of primary assumption of risk. In support of their motion, Defendants submit the pleadings, Plaintiffs Verified Bill of Particulars, the deposition transcripts of Plaintiff, Defendant Christine and Defendant Amber, text messages between Plaintiff and Defendant Amber and the Release. In opposition, Plaintiff submits her own affidavit, the affidavit of William Barr, Professional Horseman and Freelance Trainer (hereinafter "Barr Affidavit"), the affidavit of Shay McCormack, f/k/a Shay DiVittorio, excerpts from the Facebook page of Legendale Stables, the audio recording and transcript of the 911 call made after Plaintiff s accident and medical records.

Discussion

The movant for summary judgment "bears the initial burden of demonstrating its prima facie entitlement to the requested relief." Roos v. King Constr., 116 N.Y.S.3d 344, 346 [2nd Dept. 2020], citing Winegrad v New York Univ. Med. Ctr., 64 N.Y.2d 851, 853. Failure to make the initial showing "requires denial of the motion regardless of the sufficiency of the opposition papers." Junger v. John V. Dinan Assoc, Inc., 164 A.D.3d 1428, 1429 [2nd Dept. 2018], citing Winegrad, supra. Only when the movant has met its prima facie entitlement "does the burden then shift to the party opposing summary judgment to tender evidence, in a form admissible at trial, sufficient to raise a triable issue of fact." Roos, supra, citing Alvarez v Prospect Hosp., 68 N.Y.2d 320, 324 [1986].

In opposition, "the nonmoving party need only rebut the prima facie showing made by the moving party so as to demonstrate the existence of a triable issue of fact." Poon v. Nisanov, 162 A.D.3d 804, 806 [2d Dept. 2018], citing Alvarez, supra. "The function of a court on a motion for summary judgment is not to resolve issues of fact or determine matters of credibility, but merely to determine whether such issues exist." 114 Woodbury Realty, LLC v. 10 Bethpage Rd, LLC, 178 A.D.3d 757, 759 [2d Dept. 2019]. Summary judgment should be granted only where there are no material and triable issues of fact and the papers shall be scrutinized in the light most favorable to the party opposing the motion. Id. Such relief is a drastic remedy that deprives a litigant of his or her day in court that should only be employed when there is no doubt as to the absence of triable issues. Castlepoint Ins. Co. v. Command Sec. Corp., 144 A.D.3d 731, 733 [2d Dept 2016].

Defendant Christine

Although the Amended Complaint alleges claims of negligence, negligent misrepresentation and strict liability against Defendant Christine, it appears from Plaintiffs opposition that she now relies solely on her claim of negligent misrepresentation against said Defendant. "It is well settled that '[a] claim for negligent misrepresentation requires the plaintiff to demonstrate (1) the existence of a special or privity-like relationship imposing a duty on the defendant to impart correct information to the plaintiff; (2) that the information was incorrect; and (3) reasonable reliance on the information' [citation omitted]." Mandarin Trading Ltd v. Wildenstein, 16 N.Y.3d 173, 180 [2011]. As relevant herein, "liability for negligent misrepresentation has been imposed only on those persons who possess unique or specialized expertise, or who are in a special position of confidence and trust with the injured party such that reliance on the negligent misrepresentation is justified." Kimmell v. Schaefer, 89 N.Y.2d257, 263 [1996].

The record before this Court is completely devoid of evidence that Defendant Christine had any relationship with Plaintiff, let alone one that could be categorized as "special" or "privity-like." Plaintiff concedes that she spoke to Defendant Christine for the first and only time on the day that she stopped to inquire about riding lessons. That conversation lasted, at most, for five to six minutes. There is no evidence that Defendant Christine was in a special position of confidence or trust with Plaintiff such that Plaintiffs reliance on any purported negligent misrepresentation made by Defendant Christine could be justified.^[3] Moreover, contrary to Plaintiffs arguments in opposition, a mother's alleged "unique or specialized expertise" regarding her child is not the type of expertise that would impose a duty upon Defendant Christine to impart correct information to Plaintiff within the meaning of the case law.^[4] Importantly, Plaintiff has also failed to identify any substantive misrepresentation that was made by Defendant Christine. Without evidence of the necessary special relationship between Plaintiff and Defendant Christine, and no identified misrepresentation, Plaintiffs claim for negligent misrepresentation against Defendant Christine fails and Defendants' motion for summary judgment is granted.^[5]

Defendant Amber

Defendants advance two grounds upon which the Amended Complaint should be dismissed against Defendant Amber - the Release and primary assumption of risk.

Release

The first paragraph of the Release indicates that Plaintiff has "read and understand[s], and freely and voluntarily enter[s] into this Release and Hold Harmless Agreement with Legendale Stables LLC, understanding that the Release and Hold Harmless Agreement is a waiver of any and all liability(ies)." The next paragraph states that Plaintiff understands the potential dangers that she could incur in mounting, riding or walking said horse and specifically includes a release of Defendant Amber "from any liability whatsoever in the event of injury or damage of any nature (or perhaps even death) to me or anyone else caused by or incidental to my electing to mount and ride a horse."

Additionally the Release provides that Plaintiff voluntarily agrees and warrants to release and hold harmless Defendant Amber

from any liability whatsoever, relating to injuries

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