Lungen v. Harbors Haverstraw Homeowners Ass'n, Inc.

206 A.D.3d 714

170 N.Y.S.3d 159

Michael LUNGEN, appellant,

v.HARBORS HAVERSTRAW HOMEOWNERS ASSOCIATION, INC., et al., respondents, et al., defendant.

2020–00545, 2020–03093

Index No. 31175/18

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

Argued—March 18, 2022

June 8, 2022

Neimark & Neimark LLP, New City, NY (Ira H. Lapp of counsel), for appellant.

Barry McTiernan & Moore LLC, White Plains, NY (Laurel A. Wedinger and David Schultz of counsel), for respondents.

BETSY BARROS, J.P., ANGELA G. IANNACCI, CHERYL E. CHAMBERS, DEBORAH A. DOWLING, JJ.

DECISION & ORDER

In an action to recover damages for personal injuries, the plaintiff appeals from (1) an order of the Supreme Court, Rockland County (Thomas P. Zugibe, J.), dated January 14, 2020, and (2) an order of the same court dated March 9, 2020. The order dated January 14, 2020, granted the motion of the defendants Harbors Haverstraw Homeowners Association, Inc., and FirstService Residential Midatlantic, LLC, for summary judgment dismissing the complaint insofar as asserted against them. The order dated March 9, 2020, insofar as appealed from, upon reargument, adhered to the original determination in the order dated January 14, 2020, granting those defendants’ motion for summary judgment dismissing the complaint insofar as asserted against them.

ORDERED that the appeal from the order dated January 14, 2020, is dismissed, without costs or disbursements, as that order was superseded by the order dated March 9, 2020, made upon reargument; and it is further,

ORDERED that the order dated March 9, 2020, is affirmed insofar as appealed from, without costs or disbursements.

The plaintiff allegedly was injured while playing basketball when he slipped on condensation that had accumulated on the floor of an indoor gymnasium. The plaintiff thereafter commenced the instant action to recover damages for personal injuries against the defendants Harbors Haverstraw Homeowners Association, Inc., and FirstService Residential Midatlantic, LLC (hereinafter together the defendants), among others, alleging that the accident was caused by the defendants’ negligence, inter alia, in maintaining the gymnasium. Following discovery, the defendants moved for summary judgment dismissing the complaint insofar as asserted against them on the ground that the plaintiff assumed the risk of his injuries. In an order dated January 14, 2020, the Supreme Court granted the defendants’ motion. The plaintiff moved for leave to reargue his opposition to the defendants’ motion for summary judgment. In an order dated March 9, 2020, the court, upon reargument, adhered to the original determination in the January 14, 2020 order granting the defendants’ motion. The plaintiff appeals.

"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’ " ( Asprou v. Hellenic Orthodox Community of Astoria, 185 A.D.3d 641, 642, 127 N.Y.S.3d 584, quoting Morgan v. State of New York, 90 N.Y.2d 471, 484, 662 N.Y.S.2d 421, 685 N.E.2d 202 ; see Custodi v. Town of Amherst, 20 N.Y.3d 83, 88, 957 N.Y.S.2d 268, 980 N.E.2d 933 ). "Risks inherent in a sporting activity are those which are known, apparent, natural, or reasonably foreseeable consequences of the participation" ( Mamati v. City of N.Y. Parks & Recreation, 123 A.D.3d 671, 672, 997 N.Y.S.2d 731 ). "The primary assumption of risk doctrine also encompasses risks involving less than optimal conditions" ( Bukowski v. Clarkson Univ., 19 N.Y.3d 353, 356, 948 N.Y.S.2d 568, 971 N.E.2d 849 ; see Sykes v. County of Erie, 94 N.Y.2d 912, 913, 707 N.Y.S.2d 374, 728 N.E.2d 973 ).

" ‘Assumption of risk is not an absolute defense but a measure of the defendant's duty of care’ " ( Maharaj v. City of New York, 200 A.D.3d 769, 769, 157 N.Y.S.3d 534, quoting Asprou v. Hellenic Orthodox Community of Astoria, 185 A.D.3d at 642, 127 N.Y.S.3d 584 ). The doctrine "does not exculpate a landowner from liability for ordinary negligence in maintaining a premises" ( Sykes v. County of Erie, 94 N.Y.2d at 913, 707 N.Y.S.2d 374, 728 N.E.2d 973 ; see O'Brien v. Asphalt Green, Inc., 193 A.D.3d 1061, 1063, 147 N.Y.S.3d 114 ). "Participants are not deemed to have assumed risks that are concealed or unreasonably increased over and above the usual dangers that are inherent in the sport" ( M.P. v. Mineola Union Free Sch. Dist., 166 A.D.3d 953, 954, 88 N.Y.S.3d 479 ; see Custodi v. Town of Amherst, 20 N.Y.3d at 88, 957 N.Y.S.2d 268, 980 N.E.2d 933 ). However, "[i]f the risks are known by or perfectly obvious to the player, he or she has consented to them and the property owner has discharged its duty of care by making the conditions as safe as they appear to be" ( Brown v. City of New York, 69 A.D.3d...