New York State Court of Claims

New York State Court of Claims

WERBELOW v. THE STATE OF NEW YORK, #2005-016-0024, Claim No. 101914, Motion No. M-63746


Claim alleging that rollerblader was injured on State bike path was dismissed under the doctrine of assumption of risk.

Case Information

1 1.The caption has been amended to reflect that the sole proper defendant is the State of New York.
Claimant short name:
Footnote (claimant name) :

Footnote (defendant name) :
The caption has been amended to reflect that the sole proper defendant is the State of New York.
Third-party claimant(s):

Third-party defendant(s):

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

Alan C. Marin
Claimant’s attorney:
Lloyd Somer, Esq.
Defendant’s attorney:
Eliot Spitzer, Attorney GeneralBy: John M. Shields, Esq., AAG
Third-party defendant’s attorney:

Signature date:
March 14, 2005
New York

Official citation:

Appellate results:

See also (multicaptioned case)


This is defendant’s motion pursuant to CPLR §§3211 and 3212 for an order dismissing the claim of Ina and David Werbelow.[2] In such claim, it is alleged that on April 8, 1999, Ina Werbelow fell and injured herself while rollerblading on the Ellen Ferrant Bicycle Path alongside the Wantagh Parkway, because the pathway was “broken, defective, raised, and uneven, and contained a repaired and/or patched area . . .” Claim, ¶¶4 and 5. The grounds for defendant’s motion are that: (1) pursuant to General Obligations Law §9-103, defendant is immune from liability; (2) claimant assumed the risk of rollerblading; and (3) the defect alleged is too trivial to be actionable. Prior to her fall, claimant, who described herself as a “rather competent” rollerblader, had been skating on the Ellen Ferrant Bicycle Path for three years, having passed over the site of her accident about 20 times. She had last been there in the fall of 1998 and said she had seen “cracks” in the roadway at that time, adding that the condition was worse at the time of her fall. On the day of her accident, she had seen the cracked condition while going in the opposite direction on the path, and so as she approached the area, she slowed down and tried to step over the cracks, but her right skate got caught, causing her to fall. See claimant’s April 18, 2001 deposition transcript, annexed to defendant’s moving papers as exhibit A.

Defendant argues that the State is immune from liability pursuant to General Obligations Law §9-103. Such statute essentially provides that with certain exceptions, a landowner has no duty to keep premises safe for persons who enter for various enumerated recreational purposes, or to give such persons warning of hazardous conditions. Aside from the fact that rollerblading is not one of the enumerated activities in the statute, §9-103 does not provide the State with immunity from liability here because the Court of Appeals has ruled that the “statute does not apply . . . to immunize a municipality from liability for its failure to fulfill its duty of reasonable care in the operation and maintenance of a supervised public park and recreational facility . . .” Sena v Town of Greenfield, 91 NY2d 611, 615-16, 673 NYS2d 984, 987 (1998). Defendant does not dispute that the Ellen Ferrant Bicycle Path is part of a supervised public park and recreational facility.

Defendant next argues that the claim should be dismissed because Ina Werbelow assumed the risk of rollerblading. In Morgan v State of New York, 90 NY2d 471, 484, 662 NYS2d 421, 426 (1997), the Court of Appeals stated that:
Relieving an owner or operator of a sporting venue from liability for inherent risks of engaging in a sport is justified when a consenting participant is aware of the risks; has an appreciation of the nature of the risks; and voluntarily assumes the risks . . . It is also important to appreciate that, 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.

With regard to rollerblading, see Morlock v Town of North Hempstead, 12 AD3d 652, 653, 785 NYS2d 123, 124 (2d Dept 2004), where the claim was dismissed because the Second Department found that the infant plaintiff, who was playing rollerhockey, “assumed the risk of encountering cracks and holes in the surface of a cement rink . . .” See also Auricchio v State of New York, Ct Cl dated May 31, 2000 (unreported, claim no. 97133, motion no. M-61165, Silverman, J.), in which the court, in dismissing the claim, stated that “[r]ollerblading is a form of exercise which foresees that an individual may fall due to their own loss of balance, a defect in the skating surface or an outside influence . . .”

Reviewing the facts as alleged in the claim and as set forth in claimant’s deposition, and viewing the photographs of the accident site, there is no indication that there were “unreasonably increased risks” in this case, or that defendant acted recklessly, intentionally, or concealed the risks, such that the doctrine of assumption of risk would not apply. See Morgan, supra, 90 NY2d at 485, 662 NYS2d at 427.

In view of the foregoing, I find that claimant assumed the risk of the rollerblading activity she undertook, and defendant’s arguments as to a de minimis condition need not be reached. Accordingly, having reviewed the submissions[3], IT IS ORDERED that motion no. M-63746 be granted and claim no. 101914 be dismissed.

March 14, 2005
New York, New York

Judge of the Court of Claims

  1. [2]Because the claim of David Werbelow is derivative in nature, references in the singular to claimant shall be to Ina Werbelow.
  2. [3]The following were reviewed: defendant’s notice of motion with affirmation in support, exhibits A through D and memorandum of law; claimants’ affidavit and brief in opposition; and defendant’s reply affirmation.