The following papers numbered 1 to 5 read on this motion:Papers NumberedNotice of Motion/Order to Show Cause Affidavits (Affirmations) Annexed 1Opposing Affidavits (Affirmations) 2Reply Affidavits (Affirmations) 3Memorandum(s) of Law 4-5Decision and Order After oral argument and a review of the submissions herein, the Court finds as Follows:Defendants, HUNTER MOUNTAIN SKI BOWL, INC. (hereinafter “HUNTER”), move pursuant to C.P.L.R. §3212, for an Order granting Defendants summary judgment and dismissing the Complaint of the Plaintiff upon the grounds that the alleged condition was open and obvious, foreseeable consequence of inherently dangerous activity and the defendant did not proximately cause the accident. Plaintiff opposes the same.FACTSThe instant action for personal injury arises out of an accident which occurred due to plaintiff allegedly skiing over an unmarked bare spot on the ski slope trail on the mountain. As a result of this accident Plaintiff alleges to have sustained injury.ARGUMENTSDefendant contends the conditions upon which plaintiff was injured were open and obvious. Defendant also contends that the bar spot was visible from approximately 400 ft. uphill. Additionally, defendant contends the plaintiff voluntarily assumed the risk of encountering unmarked bare spots on and open trail when plaintiff decided to ski. Due to the inherently dangerous nature of skiing the plaintiff assumed the risk as a matter of law. Finally, the defendant contends that the defendant did not proximately cause the accident. Summary judgement must be granted.Plaintiff contends the bare spot was not open and obvious because it was hidden from view. Plaintiff alleges she was forced to ski around a snow mound, to avoid a jump constructed by the ski slope, before reaching a horizon where view of the bare spot was unobstructed, and at that time it was too late to avoid the bare spot. Moreover, plaintiff contends that the bare spot was completely unmarked and not blocked off, and as a result was not open and obvious and the defendant failed to warn of a hazard on their property that they were aware of: Finally, among other things plaintiff contends the conflicting testimony of where or when the bare spot was visible is contradictory and the same is an issue of credibility which a jury must be allowed to assess.ANALYSISIt is well established that a moving party for summary judgment must make a prima facie showing of entitlement as a matter of law, offering sufficient evidence to demonstrate the absence of any material issue of fact. Winegrad v. New York Univ. Med. Center, 64 N.Y.2d 851, 853 (1985). Once there is a prima facie showing, the burden shifts to the party opposing the motion for summary judgment to produce evidentiary proof in admissible form to establish material issues of fact, which require a trail of the action. Zuckerman v. City of New York, 49 N.Y.2d 557 (1980); Alvarez v. Prospect Hosp., 68 N.Y.2d 320 (1986). However, where the moving party fails to make a prima facie showing, the motion must be denied regardless of the sufficiency of the opposing party’s papers.A motion for summary judgment will be granted “if, upon all the papers and proof submitted, the cause of action or defense shall be established sufficiently to warrant the court as a matter of law in directing the judgment in favor of any party”. CPLR §3212 (b). The “motion shall be denied if any party shall show facts sufficient to require a trial of any issue of fact.” Id.The defendants failed to meet their burden of establishing, as a matter of law, that they maintained the ski trail in a reasonably safe condition, and that the bare spot was an open and obvious condition which was not inherently dangerous (see Gradwohl v. Stop & Shop Supermarket Co., LLC, 70 AD3d 634 [2010]; Cupo v. Karfunkel, 1 AD3d 48 [2003]). “A condition that is ordinarily apparent to a person making reasonable use of his or her senses may be rendered a trap for the unwary where the condition is obscured or the plaintiff is distracted” (Shah v. Mercy Med. Ctr., 71 AD3d 1120, 1120 [2010]; see Bloomfield v. Jericho Union Free School Dist., 80 AD3d 637, 639 [2011]; Villano v. Strathmore Terrace Homeowners Assn., Inc., 76 AD3d 1061, 1062 [2010]); Beck v. Bethpage Union Free Sch. Dist., 82 AD3d 1026, 1027-28, 919 NYS2d 192 (2011). Moreover, a latent hazard may give rise to a duty to protect entrants from that danger. The issue of whether a hazard is latent or open and obvious is generally fact-specific and thus usually a jury question (see, Liriano v. Hobart Corp., 92 NY2d 232, 242 [1998]; Bolm v. Triumph Corp., 33 NY2d 151, 159-160 [1973]), (see also, Tushaj v. City of New York, 258 AD2d 283, lv denied 93 NY2d 818 [1999]; Paone v. County of Suffolk, 251 AD2d 563, 564; Russell v. Archer Bldg. Ctrs., 219 AD2d 772); Tagle v. Jakob, 97 NY2d 165, 169, 763 NE2d 107 (2001).In the present case, numerous issues of fact exist. There exists a question of fact as to whether the alleged condition was open and obvious surrounding the accident as it may have been obscured form view during the plaintiff dissent down the trail. There exists a question of fact as to the condition of the bare spot and whether it was visible to the plaintiff at the time of her accident. There exists a question of fact as to whether or not the defendants failed to appropriately warn of the allegedly hazardous condition. There is conflicting testimony regarding the visibility of the bare spot which is a question of credibility best left for the jury to decide.Accordingly, defendant’s Motion for Summary Judgment and sanctions is hereby denied in its entirety.This constitutes the Decision/Order of the Court.Date: December 5, 2018
