LUPICA v. THE STATE OF NEW YORK, #2000-019-530, Claim No. 98714, Motion Nos.
State's motion for summary judgment granted since Claimant assumed the risk of
mountain biking in an area of Bethpage State Park known as the "Brick
Footnote (claimant name)
THE STATE OF NEW YORK
Footnote (defendant name)
FERRIS D. LEBOUS
GRAYNOR & GRAYNOR, ESQS.BY: Louis Graynor, Esq., of counsel
HON. ELIOT SPITZER, ATTORNEY GENERAL
BY: John M. Shields, Assistant Attorney General, of counsel
August 28, 2000
See also (multicaptioned
The defendant State of New York (hereinafter "State") moves for summary
judgment pursuant to CPLR 3212 contending this claim is barred by the doctrine
of assumption of the risk or, in the alternative, the application of immunity
pursuant to General Obligations Law 9-103. Claimant opposes the motion and
cross-moves for summary judgment.
The Court has considered the following papers in connection with these
Claim, filed July 29, 1998.
Verified Bill of Particulars, filed December 14, 1998.
Notice of Motion No. M-61979, dated July 5, 2000 and filed July 10, 2000.
Affirmation of John M. Shields, AAG, in support of motion, dated June 30, 2000,
with attached exhibits.
"DEFENDANT'S MEMORANDUM OF LAW", in support of motion, dated June 30,
"AFFIRMATION IN OPPOSITION TO RESPONDENT'S MOTION FOR SUMMARY JUDGMENT AND IN
SUPPORT OF CLAIMANT'S CROSS-MOTION", Cross-Motion No. CM-62228, of Louis
Graynor, Esq., dated July 25, 2000 and filed July 27, 2000, with attached
Reply Affirmation of John M. Shields, AAG, in support of motion and in
opposition to cross-motion, dated July 28, 2000 and filed August 2, 2000.
Reply Affirmation of Louis Graynor, Esq., in support of cross-motion and in
opposition to motion, dated August 1, 2000 and filed August 4, 2000, with
Claimant was riding his mountain bike on May 5, 1998, at approximately 11:30
a.m. in Bethpage State Park, Farmingdale, New York through an area commonly
referred to as the "Brick Yard" in recognition of the fact that there were
"thousands of bricks strewn about the ground and trails". (Claim, p 2 &
Verified Bill of Particulars, ¶ 8). Claimant was injured when he fell off
his bike as the result of hitting one of these bricks. This matter is scheduled
for a trial on the sole issue of liability on October 17 & 18, 2000.
On a motion for summary judgment, the moving party must present evidentiary
facts that establish the party's right to judgment as a matter of law, while the
opposing party must present evidentiary proof in admissible form that
demonstrates the existence of a factual issue. (Friends of Animals v
Associated Fur Mfrs., 46 NY2d 1065, 1067-1068). The Court must accept
Claimant's evidence as true and grant him every favorable inference.
(Hartford Ins. Co. v General Acc. Group Ins. Co., 177 AD2d 1046,
The State contends the doctrine of primary assumption of the risk bars this
Claim. In opposition, Claimant argues that CPLR 1411 requires a reduction in
any recovery in the appropriate proportion of his culpable conduct, if any,
rather than a total bar to recovery.
parties are attempting to compare apples to oranges. It is well-settled:
[t]here are two distinct doctrines of assumption of risk [citations omitted].
The first is not an absolute defense, but rather, is based on comparative fault
and reduces the recovery of [claimant] in the proportion that his culpable
conduct contributed to the accident [citations omitted]. The second, primary
assumption of risk, is based on principles of duty and is a complete bar to
recovery [citations omitted].
(Weller v Colleges of the Senecas, 217 AD2d 280, 283; see also,
Siegel, Practice Commentaries, McKinney's Cons Laws of NY, Book 7B, CPLR
C1411:2, at 565). Here, the State's motion is based upon primary assumption of
risk which means our analysis should not be viewed in terms of Claimant's
comparative fault, but rather as a measure of the Defendant's duty of care. In
short, "[p]rimary assumption of risk eliminates or reduces the tortfeasor's duty
of care to the [claimant] and, in the former case, constitutes a complete bar to
recovery, notwithstanding CPLR article 14-A [citations omitted]." (Lamey v
Foley, 188 AD2d 157, 163).
The doctrine of primary assumption of the risk dictates that "[b]y 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 NY2d 471, 484). This principle of inherent risks "[e]ncompasses
risks associated with the construction of the playing field, and any open and
obvious conditions on it [citations omitted]". (Paone v County of
Suffolk, 251 AD2d 563, 564). Hence, "[i]f the risks of the activity are
fully comprehended or perfectly obvious, [claimant] has consented to them and
defendant has performed its duty [citations omitted]." (Turcotte v Fell,
68 NY2d 432, 439; Colucci v Nansen Park, 226 AD2d 336; Paone v County
of Suffolk, supra, 251 AD2d, at 564). On this motion for summary
judgment, the State's burden is to establish that Claimant "[w]as aware of the
defective or dangerous condition and the resultant risk, although it is not
necessary to demonstrate that [claimant] foresaw the exact manner in which his
injury occurred [citation omitted]" (Lamey v Foley, supra, 188
AD2d at 164), and "[s]o long as he or she is aware of the potential for injury
of the mechanism from which the injury results." (Maddox v City of New
York, 66 NY2d 270, 278).
The factors which the Court should review in determining whether Claimant made
"[a]n informed estimate of the risks involved in an activity before deciding to
participate depends on the openness and obviousness of the risk, [claimant's]
background, skill, and experience, [claimant's] own conduct under the
circumstances, and the nature of defendant's conduct [footnote and citations
omitted]." (Lamey v Foley, supra, 188 AD2d, at 164). Here,
Claimant's own pleadings describe the area of this accident in Bethpage State
Park as a place commonly referred to as the "Brick Yard" which name was
derived from the fact that "[t]here are thousands of bricks strewn about the
ground and trails...." (Claim, p 2; Verified Bill of Particulars, ¶ 8).
Consequently, the facts are undisputed that the risk of the bricks were open and
obvious to Claimant. Moreover, in this Court's view, the risk of falling while
biking over bricks on the ground is a matter of common experience. (Maddox v
City of New York, supra, 66 NY2d, at 278).
Also, from this record there is no question that Claimant was an experienced
mountain bike rider. Claimant was 19 years old at the time of this accident and
testified in his examination before trial that he had been mountain biking for
at least five years and BMX racing since the age of eight. (Affirmation of John
M. Shields, AAG, Exhibit A, pp 7 & 8). Additionally, Claimant conceded, in
pertinent part, the following:
Had you ever been to Bethpage State Park with the Trek 7,000 [mountain
Yes, a bunch of times.
When you say, "a bunch of times," approximately how many times, over what period
Average, three times a week for five years. I had another mountain bike
* * *
In any of the trips to Bethpage State Park with your bicycle and with any of the
bicycles that you owned that had you ever ridden through this area
--on how many occasions--
A bunch of times.
* * *
When was the first time ever that you rode through that area on a bicycle?
Maybe two years before that.
When you rode through it two years ago, was it generally the same as it was on
the date of your accident?
(Affirmation of John M. Shields, AAG, Exhibit A, pp 8, 19, 20).
In sum, Claimant was a 19 year old whom had been mountain biking generally for
at least five years; had been to Bethpage State Park approximately three times a
week during that time period; and had rode through this particular area known as
the "Brick Yard" a "bunch of times" during the two years immediately preceding
this accident under the same conditions.
Consequently, the Court finds the State has sustained its initial burden of
producing sufficient evidence to establish the risk of the bricks on the ground
was an open and obvious hazard and that Claimant willingly participated in this
activity with full knowledge of the risk of being injured as a result from being
thrown from his bike. (Lamey v Foley
, 188 AD2d, at 164).
Accordingly, the burden shifts to Claimant to come forward as "[t]he party
opposing the motion for summary judgment to produce evidentiary proof in
admissible form sufficient to establish the existence of material issues of fact
which require a trial of the action [citation omitted]." (Alvarez v Prospect
, 68 NY2d 320, 324).
Claimant offers only an attorney's affirmation in opposition to the State's
motion for summary judgment disputing several of the factual allegations made by
the State in its moving papers. Claimant disputes the following representations
of the proof by the State: that Claimant testified he was in "an undeveloped,
unmarked, unsupervised wooded area" and there were "no official markers"; that
Mr. Matthews testified unequivocally the park "has not designated (the area) for
bike trails"; or whether "photographs clearly reveal that the bricks along this
wooded area were open and obvious for the claimant to see". (Affirmation in
Opposition of Lousis Graynor, Esq., ¶ ¶ 4-8). On this motion for
summary judgment, the Court accepts Claimant's opposing version of these facts
as true. (Hartford Ins. Co. v General Acc. Group Ins. Co., supra,
177 AD2d, at 1047). However, even assuming Claimant's version to be true (e.g.,
that this unofficial trail was officially marked; that there were no signs
restricting biking; and that Mr. Matthews did not see the bricks when visiting
the site), does not alter the fact of Claimant's own awareness and consent or
meet Claimant's burden of presenting evidentiary proof in admissible form that
demonstrates the existence of a factual issue. Nor did Claimant present any
evidence or expert affidavit comparing the traits of a normal mountain bike
"trail" to the "Brick Yard" so as to even raise a question of fact that the
presence of these bricks unreasonably increased the risk inherent in mountain
biking and, if so, whether these additional risks were assumed as well.
(Owen v R.J.S. Safety Equip., Inc., 79 NY2d 967, 970; Laboy v Wallkill
Cent. School Dist., 201 AD2d 780).
In sum, there are no fact questions remaining since by Claimant's own
admissions he was an experienced mountain bike rider; had ridden this same
course in this same condition for years; and was specifically aware of the
presence of bricks throughout the area. Consequently, "[t]he risk presented by
the [bricks was] perfectly obvious and the [area] was as safe as it appeared to
be." (Bailey v Town of Oyster Bay, 227 AD2d 427, 427-428). Accordingly,
Claimant assumed the risk of being injured by voluntarily engaging in mountain
biking in the area of Bethpage State Park commonly referred to as the "Brick
Yard". Consequently, the State's motion for summary judgment will be granted
and Claim No. 98714 dismissed; and the State's remaining arguments need not be
Accordingly, in light of the foregoing, the State's motion for summary
judgment, Motion No. M-61979, is GRANTED and Claim No. 98714 is DISMISSED.
Claimant's cross-motion for summary judgment, Cross-Motion No. CM-62228 is
DENIED. Claim No. 98714 shall be removed from the Court's trial calendar.
Binghamton, New York
HON. FERRIS D. LEBOUS
Judge of the Court
Claimant's opposition papers sought affirmative relief, but failed to include a
Notice of Cross-Motion in compliance with CPLR 2215. However, the State
responded to the motion on the merits so the Court has accepted Claimant's
papers despite said omission. Parenthetically, the Court notes that such
treatment is academic in light of the instant decision.
CPLR 1411 states, in pertinent part:
[t]he culpable conduct attributable to the claimant...,including
contributory negligence or assumption of risk, shall not bar recovery, but the
amount of damages otherwise recoverable shall be diminished in the proportion
which the culpable conduct attributable to the claimant...bears to the culpable
conduct which caused the damages.
Claimant conceded the following: "It is acknowledged, as alleged by counsel for
the STATE, that the claimant had been a dirt bike rider since he was 8 years old
and that he had been to Bethpage State Park several times each week for five (5)
years. It is also acknowledged that claimant had ridden on the same trail where
this accident occurred, which trail had not changed in at least two (2) years
preceding this accident." (Affirmation of Louis Graynor, Esq., ¶ 3).