Upon the following papers read on defendant’s motion seeking summary judgment in it favor pursuant to CPLR 3212: NYSCEF documents 1 thru 75: it is ORDERED plaintiff’s motion for summary judgment is denied. On August 13, 2021, J.M., the infant plaintiff, was injured at Veterans Skate Park located at Bellerose Avenue in East Northport, New York. The twelve-year-old child was enrolled in a skateboarding/camp program operated by the defendant Town. Plaintiff alleges that he was injured when he was instructed to complete an obstacle course within the skateboarding facility without the use of a skateboard. Plaintiff alleges he was attempting to run down into an approximately 8.5 feet deep concrete vertical bowl when he fell and sustained serious personal injuries. Issue has been joined. Discovery is complete, and a note of issue has been filed. Defendant now moves for summary judgment maintaining that the child assumed the risk of the activity he was engaged in. In support of the motion, defendant submits, among other things, the 50-h transcript of plaintiff and his father; the deposition transcripts of plaintiff and his father; an expert affidavit of Ben Wixon; a camp brochure, various photographs, including a posted sign; the incident report; and the response to its notice to admit. In opposition, plaintiff submits, among other things, the incident report; a Town activities brochure; the obstacle course diagram; the park rules; camp information; the expert report of Alphonses J. Heraghty; the deposition transcripts of plaintiff, and Joseph Mannix, the camp director/instructor. The proponent of a summary judgment motion must make a prima facie showing of entitlement to judgment as a matter of law by tendering evidence in admissible form sufficient to eliminate any material issues of fact from the case (see Alvarez v. Prospect Hosp., 68 NY2d 320, 508 NYS2d 923 [1986]; Winegrad v. New York Univ. Med. Ctr., 64 NY2d 851, 487 NYS2d 316 [1985]). The movant has the initial burden of proving entitlement to summary judgment (Winegrad v. New York Univ. Med. Ctr., supra). Failure to make such a showing requires denial of the motion, regardless of the sufficiency of the opposing papers (Winegrad v. New York Univ. Med. Ctr., supra). Once such proof has been offered, the burden then shifts to the opposing party who must proffer evidence in admissible form and must show facts sufficient to require a trial of any issue of fact to defeat the motion for summary judgment (CPLR 3212 [b]; Alvarez v. Prospect Hosp. , supra; Zuckerman v. City of New York, 49 NY2d 557, 427 NYS2d 595 [1980]). As the court’s function on such a motion is to determine whether issues of fact exist, not to resolve issues of fact or to determine matters of credibility, evidence must be viewed in the light most favorable to the nonmoving party (see Chimbo v. Bolivar, 142 AD3d 944, 37 NYS3d 339 [2d Dept 2016]; Pearson v. Dix McBride, LLC, 63 AD3d 895, 883 NYS2d 53 [2d Dept 2009]; Kolivas v. Kirchoff, 14 AD3d 493, 787 NYS2d 392 [2d Dept 2005]). The doctrine of assumption of the risk has recently been addressed by the Court of Appeals in two cases, Grady v. Chenango Valley Central School District, and Secky v. New Paltz Central School District, decided together on April 27, 2023, __-NE3d-__, 2023 WL 3 2023 NY Slip op. 02142. Interestingly, the Court reached opposite results in each case. The primary assumption of risk doctrine, as it applies to sport, “as articulated by Judge Cardozo, is based on the premise that “one who takes part in a sport accepts the dangers that inhere in it so far as they are obvious and necessary” Grady, supra, citing Morgan v. State of New York, 90 NY2d 471, 662 NYS2d 421 [1997]). “Primary assumption of the risk applies when a consenting participant in a ‘qualified activity’ is aware of the risks; has an appreciation of the nature of the risks; and voluntarily assumes the risks” Grady, supra. A participant is not, however, deemed to have assumed the risk that are concealed or unreasonably enhanced. In Secky v. New Paltz Central School District, supra, the Court of Appeals held that the primary assumption of risk applied because the basketball drill, in which the players competed to retrieve a rebound, “did not unreasonably increase the risk of injury beyond that inherent in the sport of basketball.” Like the argument in Secky, defendant’s expert opines that the exercise of entering the flow bowl on foot by a 12 year old camper who had attended 10 to 13 sessions did not create an unreasonable risk, was a risk inherent to the sport of skateboarding and was a proper and indicated exercise frequently utilized in skateboard training. Contrary to the defendant’s position, the injury here did not take place as a result of an inherent risk of skateboarding. Rather a question of fact exists as to whether defendant, by creating an obstacle course and instructing camper to “race” in a relay created a dangerous condition over the usual dangers that are inherent to skateboarding. Moreover, a factual dispute exists as to whether the child was instructed to go “slowly” into the bowl as testified to by Joseph Mannix, the camp director and by the child himself or if the instruction by the camp counselor who demonstrated how to navigate the obstacle course and ran through the course, including running down the bowl and back up the bowl created a unique and dangerous condition over the usual dangers that are inherent in skateboarding (see Grady v. Chenango Valley Central School District, supra). Joseph Mannix also conceded in his testimony that the idea of the obstacle course, “is to see who finished the race first” and that the obstacles on the obstacle course “had nothing to do with skating.” Finally, the infant plaintiff herein was twelve years old at the time of the accident, and an additional factual question exists as to whether the infant had capacity to appreciate the risk associated with the use of the skate park, bow, and obstacle course for an unintended purpose (Bello v. Fieldhouse at Chelsea Piers, 18 AD3d 272, 795 NYS2d 24 [1st Dept 2005]). Accordingly, as defendant has failed to establish a prima facie entitlement to summary judgment given the factual issues herein the court need not consider the sufficiency of the opposing papers. Dated: August 24, 2023
