The e-filed papers bearing NYSCEF document numbers 20-35 were read on the motion of the defendants, Somers Pointe Golf Club (“Somers”) and Heritage Hills Holdings LLC (“Heritage Hills”) (collectively, the “Defendants”), for an Order granting summary judgment dismissing the complaint of the plaintiff, John Parafestas (the “Plaintiff”). The Plaintiff filed this cause seeking to recover monetary damages for personal injuries allegedly sustained in an accident that occurred on June 16, 2019 (the “Accident”). In essence, the Plaintiff contends that he fell at the Defendants’ golf course because of a wet “lump” of “clump” of grass, which he did not see, while descending a wooden exterior staircase. Presently before the Court is the Defendants’ motion for summary judgment, which is predicated on the doctrine of primary assumption of risk. For the following reasons, the Defendants’ motion is granted and the complaint is dismissed. I. Background The Accident occurred at the Somers Pointe Golf Club, which is located at 1000 West Hill Drive North, Somers, New York, at the wooden exterior staircase leading to and from the 17th hole tee box. A. The Bill of Particulars In his bill of particulars, the Plaintiff alleges, inter alia, the following: The steps leading to the hole tee box were in an unsafe and dangerous conditions; it will be claimed defendants had both actual and constructive notice of said conditions; plaintiff does not presently know when and to whom actual notice was given; plaintiff does not know who caused or created the conditions; the unsafe and dangerous condition consisted of wet, slippery surfaces with grassy and weed growth; see above; it is believed the condition existed for several days before the accident. B. The Plaintiff’s Deposition Testimony The material elements of the Plaintiff’s deposition testimony relative to liability are set forth below. The Plaintiff plays golf on a regular basis. He is experienced in the sport, having played for over 20 years at various courses. On the date of the Accident, he and three other individuals had a tee time of “about noon.” Although it was raining, they nonetheless teed off at approximately that time. The Plaintiff wore golf shoes with protruding cleats. The Plaintiff estimated that it took approximately 3.5 hours to play 16 holes and that it rained during this time. The course was considerably wet during the 3.5 hours of play. The Accident took place at approximately 3:30 p.m., which is when the Plaintiff finished teeing off at the 17th tee box After taking his shot, the Plaintiff utilized an exterior wooden staircase, which led from the tee box back down to the area that he had originally come from. Same consisted of six or seven steps. The Accident occurred while the Plaintiff was descending the exterior wooden staircase. While descending, he utilized the handrail with his right hand and carried a golf club in his left hand. As the Plaintiff stepped down from the third step, his right foot got caught on a “lump” or “clump” (the “lump”) of grass, causing him to be propelled forward and down the steps. The “lump” of grass was “a few inches” in size. The Plaintiff admitted that he did not see the “lump” of grass before the Accident: Q. As you were descending the staircase, where were you looking? A. Right in front of me. Q. Were you looking at the actual steps as you were descending down them? A. Just out in front or [sic] me. Staircase, whatever is in front. Q. Were you able to visualize the steps as you were walking down them? A. Yes. Q. Did you see anything on them? A. I did not. Q. Did the steps appear wet to you? A. Yes. Q. They were discolored with moisture? A. Yes. Q. You say your foot got caught on something. What did it get caught on? A. Clump of grass. Q. Can you approximate its size in scope for me? Was it a — A. It was a tuft of grass. Q. Like if you’d take a divot from a golf course? A. More or less, yes. Q. Did you see it as you stepped onto it? A. I did not. Q. Was it a few inches long, a few feet long, if you can describe it? A. A few inches. The Plaintiff does not know how long the “lump” of grass was on the step before the Accident. He also did not know if the subject grass was stuck to the wooden step or if it as laying on top thereof. The Plaintiff was also unaware of how the grass came to be on the step before the Accident. II. Discussion In Lungen v. Harbors Haverstaw Homeowners Association, Inc., 206 AD3d 714, 715 [2d Dept 2022], it was held as follows with respect to the doctrine of primary assumption of risk: Under the doctrine of primary assumption of risk, 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. Risks inherent in a sporting activity are those which are known, apparent, natural, or reasonably foreseeable consequences of the participation. The primary assumption of risk doctrine also encompasses risks involving less than optimal conditions. Assumption of risk is not an absolute defense but a measure of the defendant’s duty of care. The doctrine does not exculpate a landowner from liability for ordinary negligence in maintaining a premises. Participants are not deemed to have assumed risks that are concealed or unreasonably increased over and above the usual dangers that are inherent in the sport. However, “if the risks are known by or perfectly obvious to the player, he or she has consented to them and the property owner has discharged its duty of care by making the conditions as safe as they appear to be. It is not necessary to the application of assumption of risk that the injured plaintiff have foreseen the exact manner in which his or her injury occurred, so long as he or she is aware of the potential for injury of the mechanism from which the injury results [internal quotation marks, brackets and citations omitted]. Preliminarily, “[t]he step on which the claimant fell was directly used in the playing the game and, thus, constituted part of the playing field” (Galski v. State, 289 AD2d 195, 196 [2d Dept 2001]). Second, the record demonstrates that slipping on a “lump” of wet grass was a reasonably foreseeable consequence of playing golf while it was raining (see Lombardo v. Cedar Brook Golf & Tennis Club, Inc., 39 AD3d 818 [2d Dept 2007]). Here, the Plaintiff admitted while playing for approximately 3.5 hours and completing almost an entire round of golf before the Accident occurred, it was raining. The Plaintiff also admitted that he observed that the steps were wet before the Accident. Third, the “lump” of wet grass did not constitute a concealed or unreasonably increased risk. The case of Galski v. State, 289 AD2d 195, is particularly instructive here. In Galski, id., the Plaintiff was injured when his golf cleat got caught in a natural timber step. The plaintiff contended that protrusions in the step, which he did not see before the accident, were “fairly obvious.” In affirming the dismissal of the action, the Second Department concluded that the protrusions did not constitute a concealed or unreasonably increased risk. Here, the “lump” of grass was not concealed and did not cause risk to be increased unreasonably. The Plaintiff testified that he did not see the subject “lump” before the Accident. He admitted to seeing same afterwards and stated that same consisted of a few inches. Had the Plaintiff been looking at the step, he would have seen the “lump” of grass. Furthermore, there is nothing in the record that demonstrates or shows that the “lump” of grass was concealed. Thus, Galski supports the grant of the Defendants’ summary judgment motion. Fourth, and lastly, it is settled law that the doctrine of primary assumption of risk “…include[s] risks associated with the construction of the playing surface and any open and obvious condition on it” (Mangan v. Engineer’s Country Club, Inc., 79 AD3d 706, 706 [2d Dept 2010]). The “lump” of grass the Plaintiff implicates as the cause of the Accident was an open and obvious condition. The Plaintiff admitted at his deposition that he simply did not see same before the Accident. He did not testify that same was obscured or hidden. The Court notes that the Plaintiff also testified that there were grass clippings on the staircase at issue. However, additional consideration of this issue is unnecessary because, as noted, the Plaintiff contends that a “lump” of grass, not grass clippings, caused the Accident. III. Conclusion For the reasons stated above, it is hereby: ORDERED, that the Defendant’s motion for summary judgment is granted and the Plaintiff’s complaint is dismissed. The Clerk of the Court shall: (1) mark this cause dismissed upon the grant of summary judgment in the Defendants’ favor; (2) close all motions; and (3) close all appearances. This constitutes the Decision and Order of the Court. Dated: November 3, 2022
