Claimant moves this Court pursuant to CPLR 3212 for an order granting summary
judgment as to liability on her claim. Defendant opposes this relief, contending
that factual issues prevent this relief.
In April 2004, claimant commenced this action alleging that on January 22,
2004, she was injured while riding a skeleton on the bobsled run located on Mt.
Van Hoevenberg at the Verizon Sports Complex [hereinafter the Complex] in Essex
County. The Complex is owned by defendant and operated by a State entity, the
Olympic Regional Development Authority. After issue was joined, claimant brought
the instant motion.
The proponent of a motion for summary judgment carries the initial burden of
production of evidence, as well as the initial burden of proof (see
Alvarez v Prospect Hospital, 68 NY2d 320 ). The moving party must
tender sufficient evidence to establish, as a matter of law, the absence of any
material issue of fact (id.). Once the initial burden has been satisfied,
the burden of production shifts to the opponent of the motion, who must produce
sufficient admissible evidence to establish the existence of a triable issue of
fact (CPLR 3212 [a],[b]; see Winegrad v New York University Med.
Center, 64 NY2d 851 ). The evidence must, however, be viewed in the
light most favorable to the opponent of the motion, and give that party every
favorable inference (see McKinnon v Bell Sec, 268 AD2d 220 [1st
Turning to the merits, "[i]n assessing whether a defendant has violated a duty
of care within the genre of tort-sports activities and their inherent risks, the
applicable standard should include whether the conditions caused by the
defendant['s] negligence are 'unique and created a dangerous condition over and
above the usual dangers that are inherent in the sport'" (Morgan v State of
New York, 90 NY2d 471, 485 , quoting Owen v R.J.S. Safety
Equip., 79 NY2d 967, 970 . Simply stated, a participant cannot assume
risks that are concealed, or unreasonably increased risks (see Morgan
v State of New York, supra). The injured party must, however, show
"some negligent act or inaction, referenced to the applicable duty of care owed
to him by [the] defendants, which may be said to constitute a substantial cause
of the events which produced the injury'" (Benitez v New York City Bd. of
Educ., 73 NY2d 650, 659 [1989 ]; see Morgan v State of New
York, supra, at 485).
Here, claimant avers that she was training with the US skeleton team on the
date of the accident. She further avers she began her run, after being cleared
to do so, and as she approached turn 14, also known as the shakine, she struck
two workers that were on the track. A skeleton is a small sled that is ridden
face-first down the run. The record indicates that claimant was traveling at
speeds in excess of 60 miles per hour during her run.
In addition to her affidavit, claimant also submits the deposition testimony of
three employees, including the two whom she struck, David Desrocher and Philip
Dever. Due to the wintery conditions on that day, Desrocher and Dever were
assigned to clear the shakine area of the track of snow after each run. This
entailed the employees hopping down onto the track in between sled runs, and one
employee sweeping the snow so that the other could shovel it off the track. When
the next sled was ready to go down the track, the start house would announce
over a loudspeaker system and radio system, to clear the track. The announcer
tracked the progress of the sled down the track, and the workers in the shakine
would have about 30 seconds to hop up on the side of the track to allow the sled
to do its run.
These employees each testified that they did not hear the announcement that a
sled was on the track, and that they did not hear the sled until it struck them.
Desrocher testified that it was his first time working on an active track and
that he did not have any training for this duty. He stated that the start tower
was supposed to announce that a sled was on the track, and either an
announcement was not made or that he simply did not hear it. He further
testified that although the track was equipped with loudspeakers, he did not
hear the announcement, possibly because the loudspeaker closest to him was not
working. Desrocher also stated that there is no lighting system in place on the
track to visually alert workers that a sled is coming. Dever testified that he
did not hear the announcement either, although he acknowledged that it was
likely that he did not hear the announcement because he was talking to
Based on these submissions, the Court determines that claimant has met her
initial burden that the risks of her sport were unreasonably increased by the
presence of workers on the track as she was traveling down the track face-first
at speeds in excess of 60 miles per hour. The Court further determines that,
although the record contains inconsistencies as to whether the workers did not
hear the announcement due to inattention, failure of working loudspeakers or a
failure of the announcement to be made, all of these conditions would have been
created by defendant's employees and, individually or collectively, a
substantial factor in the accident. As such, the burden now shifts to defendant
to oppose claimant's prima facie showing.
In opposition to claimant's submissions, defendant submits only an attorney
affirmation. The affirmation states simply that claimant's submissions uncover
the existence of several questions of fact as to what individuals may have been
responsible for claimant colliding with Desrocher and Dever. This submission
simply does not establish the existence of a triable issue of fact. As such,
claimant is entitled to summary judgment. 
Accordingly, claimant's motion M-70756 is granted.
1.Notice of Motion filed October 5, 2005;
2. Affidavit of Courtney Yamada sworn to October 4, 2005;
3. Affirmation of William J. Keniry dated October 1, 2005; Exhibits A-I
4. Affirmation of Glenn C. King dated October 26, 2005;
5. Reply Affirmation of William J. Keniry dated October 28, 2005.