New York State Court of Claims

New York State Court of Claims

JOSEFS v. THE STATE OF NEW YORK, #2006-029-588, Claim No. 108704, Motion No. M-71413


Ice Skating at Bear Mountain State Park. Claimant, an experienced skater, fell in a hole filled with slushy ice. Claimant testified he was aware of the slushy area and avoided it nine times in the hour before he fell. Court finds that this was a risk inherent in sport of ice skating which claimant assumed. State’s motion for summary judgement granted.

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):

Claimant’s attorney:
Shaevitz & Shaevitz, Esqs.By: Jon F. Epstein, Esq.
Defendant’s attorney:
Hon. Eliot Spitzer
Attorney General of the State of New YorkBy: Judith C. McCarthy, AAG
Third-party defendant’s attorney:

Signature date:
July 5, 2006
White Plains

Official citation:

Appellate results:

See also (multicaptioned case)


This is a motion for summary judgment dismissing the claim brought by defendant, State of New York.

The essential facts of the case are undisputed. On November 15, 2003 claimant and his girlfriend, Jennifer Kalina, arrived at Bear Mountain State Park at approximately 12:15 p.m. They ate lunch, proceeded to the ice skating rink, purchased tickets and rented ice skates (Exhibit F attached to Motion, Pages 37-38 of Claimant’s Deposition Transcript). Claimant and Ms. Kalina started skating at approximately 1:00 p.m. Claimant described himself as an experienced average skater who was steady and confident on skates (id. at 86 and 88).

At approximately 2:00 p.m. after claimant had been skating for thirty to forty minutes and had skated around the rink about nine times, he fell in a hole (Exhibit F, Pages 44, 45 and 47). Claimant described the hole as being approximately two feet long, one foot wide, more than two inches deep and filled with slushy ice located approximately two feet to the right of the only entrance to the rink (id. at 41-43). Claimant observed the slushy area as he entered the rink but was not deterred from skating(id. at 47). Nor did he feel it necessary to notify anyone of the condition (id. at 67-68). In addition, claimant never reported his fall to any employee at Bear Mountain State Park nor did he file any contemporaneous accident report (id. at 74 and 82).

The amended claim asserts that the defendant was negligent in its maintenance of the ice skating rink in allowing the surface of the rink at the area of claimant’s fall to “deteriorate into an unsafe, slushy and rutted condition” creating a dangerous, defective and hazardous condition (Exhibit C attached to Motion, Amended Claim, Paragraph 24).

Summary judgment is a drastic remedy to be granted sparingly and only where no material issue of fact is demonstrated in the papers related to the motion (see Crowley’s Milk Co. v Klein, 24 AD2d 920, 264 NYS2d 680 (3d Dept 1965); Wanger v Zeh, 45 Misc 2d 93, 256 NYS2d 227, affd 26 AD2d 729 (3d Dept 1966). The proponent of a summary judgment motion must make a prima facie showing of entitlement to judgment as a matter of law, tendering sufficient evidence to demonstrate the absence of any material issues of fact (Winegrad v New York Univ. Med. Center, 64 NY2d 851, 853; Sillman v Twentieth Century-Fox Film Corp., 3 NY2d 395, 404). Failure to make such prima facie showing requires a denial of the motion, regardless of the sufficiency of the opposing papers (Winegrad v New York Univ. Med. Center, 64 NY2d supra at 853).

The State’s motion is based upon primary assumption of risk. Thus the Court’s analysis is not one of claimant’s comparative fault, but rather 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 ... constitutes a complete bar to recovery, notwithstanding CPLR article 14-A [citations omitted]” (Lamey v Foley, 188 AD2d 157, 163).

Well settled law in this area can be summarized as follows:

“[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 Alexander, Practice Commentaries, McKinney’s Cons Laws of NY, Book 7B, CPLR C1411:2, at 565).

The doctrine of primary assumption of 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; Dobert v State of New York, 8 AD3d 873). 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, 251 AD2d 563, 564). While recovery may still be had for damages resulting from exposure to “unreasonably increased risks” (Morgan v State of New York, 90 NY2d 471, 485, supra; Simoneau v State of New York, 248 AD2d 865, 866), the mere fact that a defendant could feasibly have provided safer conditions is not dispositive where the risk is open and obvious to the participant taking into consideration the individual’s level of experience and expertise and is an intrinsic part of the sport (see Morgan v State of New York, 90 NY2d 471, 485, supra; Simoneau v State of New York, 248 AD2d 865, 866, supra; Maddox v City of New York, 66 NY2d 270, 278). The State’s burden on this motion is to establish that claimant was aware of the defective or dangerous condition with its resultant risk. It is not necessary that the State establish that claimant foresaw the exact manner in which the injury occurred (Lamey v Foley, 188 AD2d supra at 164). Further, it has been held that so long as a claimant is aware of the potential for injury inherent in the hazard, claimant may be deemed to have assumed the risk of such injury (Maddox v City of New York, 66 NY2d 270, 278, supra).

As stated, the proponent of a summary judgment motion must make a prima facie showing of entitlement to judgment, producing sufficient evidence to demonstrate the absence of material issues of fact. Here, defendant asserts it has established that claimant was aware of the defect which caused him to fall and thus assumed the risk he might be injured (McCarthy Affirmation, Paragraph 17) if he skated through that area.

Having reviewed excerpts of claimant’s deposition testimony (State’s Exhibit F), the Court must agree with the State’s conclusion. Claimant testified that he saw a 2' x 1' slushy area compared to the rest of the ice when he entered the rink for the first time (Exhibit F, Page 47). While he was not specifically asked, nor did he state, whether he was aware of the hole into which he allegedly stepped (id. at 41-43), it is clear that the hole was within this slushy area (id. at 41) which would presumably be avoidable by a skater, particularly one who had successfully circumnavigated the rink nine times in the immediately preceding hour.

The appellate case law cited by defendant holds that assumption of risk applies: (1) where a skater voluntarily continued to skate despite knowledge of the defective condition (Stanger v M & T Pretzel, 5 AD 3d 471; Gillett v County of Westchester, 274 AD2d 547; Saravia v Makkos of Brooklyn, 264 AD2d 576; LoPiccolo v Town of Oyster Bay, Dept. of Parks, 260 AD2d 606; Byrne v Westchester County, 178 AD2d 575); and (2) where the condition was open and obvious (Fox v Town of Oyster Bay, 251 AD2d 621). Further, even where there was no evidence of the existence of a dangerous condition on the ice and no witnesses who observed a rut in the ice the Second Department has held that the skater assumed the risks inherent in ice skating (Rensing v Iceland, Inc., 276 AD2d 614). While motions for summary judgment have been denied where there was no evidence that the defect existed prior to commencement of the skating session nor was there evidence that claimant fell on an unresurfaced portion of the ice (Aaron v State of New York, 170 AD2d 420) neither is the case in the matter sub judice.

Defendant has established that claimant was aware of the existence of the slushy area and its attendant risks from the time he first entered the skating area. Claimant submitted no evidence explaining why he chose to skate through the slushy area despite his continuous awareness of both its existence and potential for risk of a fall. The Court believes that claimant is responsible for his own decision made despite this foreknowledge. As a result, the Court finds this matter to be squarely within the doctrine of Primary Assumption of Risk as discussed, supra, and the defendant’s motion is granted.

The following papers were read and considered by the Court on the State’s motion for summary judgment:

Papers Numbered

Notice of Motion, Affirmation and
Exhibits attached 1

Affirmation in Opposition and
Exhibits attached 2

Reply Affirmation 3

Filed Papers: Claim, Answer, Amended Claim and Answer to Amended Claim

July 5, 2006
White Plains, New York

Judge of the Court of Claims