New York State Court of Claims

New York State Court of Claims

MARINO v. THE STATE OF NEW YORK, #2001-014-502, Claim No. 99711, Motion No. M-62475


Defendant's motion for summary judgment dismissing the claim is denied. It cannot be said that being hit in the face with a Frisbee is a risk which "commonly inhere[s]" in the recreational activity of going to the beach.

Case Information

Claimant short name:
Footnote (claimant name) :

Footnote (defendant name) :

Third-party claimant(s):

Third-party defendant(s):

Claim number(s):
Motion number(s):
Cross-motion number(s):

S. Michael Nadel
Claimant's attorney:
Lawyers Legal Service Plan, P.CBy: Solomon Abrahams, Esq.
Defendant's attorney:
Eliot Spitzer, Attorney GeneralBy: John M. Shields, Assistant Attorney General
Third-party defendant's attorney:

Signature date:
February 2, 2001
New York

Official citation:

Appellate results:

See also (multicaptioned case)


The following papers were read on the defendant's motion for summary judgment dismissing the claim: Notice of Motion, Affirmation in Support and Exhibit annexed; Affirmation in Opposition; Reply Affirmation.

The claim alleges that the claimant was struck in the face by a Frisbee thrown by men in the water at Jones Beach, and that the defendant State was negligent because its lifeguards were aware of the activity and failed to stop it, although such activity is prohibited according to posted rules.

The defendant moves for summary judgment dismissing the claim, solely on the basis of the claimant's deposition testimony, which, according to counsel for the defendant, establishes that the claimant "cannot present a case against the defendant." Affirmation, Paragraph 7. According to her deposition testimony, there were signs posted which prohibited the activity which caused her injury, and there were lifeguards present who did not prevent the activity. While it may very well be that the claimant's deposition testimony, standing alone, would not establish a prima facie case of negligence, there is nothing in that testimony which would defeat her claim so as to warrant the granting of summary judgment. Her testimony that she did not see anyone playing frisbee, does not support the conclusion the defendant would have the Court draw from that testimony - - that no one was playing frisbee. Upon the record presented, the defendant has not met its burden. Alvarez v Prospect Hospital, 68 NY2d 320, 324.

To the extent that the defendant's motion is based upon the argument that by going to Jones Beach the claimant assumed the risk of being hit in the face with a Frisbee, that conclusion is not warranted -- either on the facts presented, or by the cases cited by the Assistant Attorney General. It cannot be said that being hit in the face with a Frisbee is a risk which "commonly inhere[s]" in the recreational activity of going to the beach. Morgan v State of New York, 90 NY2d 471, 484.

Accordingly, the defendant's motion is denied.

A conference, for the purpose of setting a trial date, is hereby scheduled for February 23, 2001 at 10:00 AM.

February 2, 2001
New York, New York

Judge of the Court of Claims