BULFAMANTE v. BULFAMANTE (2025)

DECISION & ORDER

In an action to recover damages for personal injuries, etc., the plaintiffs appeal from an order of the Supreme Court, Westchester County (Alexandra D. Murphy, J.), dated May 23, 2023.  The order granted the defendant's motion for summary judgment dismissing the amended complaint.

ORDERED that the order is reversed, on the law, with costs, and the defendant's motion for summary judgment dismissing the amended complaint is denied.

On September 5, 2020, the plaintiff Sebastian J. Bulfamante (hereinafter the injured plaintiff) allegedly was injured while riding as a passenger on an all-terrain vehicle (hereinafter ATV) owned and operated by his cousin Sebastiano S. Bulfamante (hereinafter the decedent) when the ATV flipped over.  The decedent died at the scene of the accident.  Thereafter, the injured plaintiff, and his wife suing derivatively, commenced this action, inter alia, to recover damages for personal injuries against the defendant Lucille R. Bulfamante, individually and as executor of the decedent's estate.  The defendant moved for summary judgment dismissing the amended complaint, contending, inter alia, that the injured plaintiff assumed the risk of injury.  In an order dated May 23, 2023, the Supreme Court granted the defendant's motion.  The plaintiffs appeal.  We reverse.

“Pursuant to the doctrine of primary assumption of risk, a voluntary participant in a sporting or recreational activity ‘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’ ” (Brown v. Roosevelt Union Free Sch. Dist., 130 A.D.3d 852, 853, 14 N.Y.S.3d 140, quoting Morgan v. State of New York, 90 N.Y.2d 471, 484, 662 N.Y.S.2d 421, 685 N.E.2d 202;  see Custodi v. Town of Amherst, 20 N.Y.3d 83, 88, 957 N.Y.S.2d 268, 980 N.E.2d 933;  Schroeder v. D'Alessio, 229 A.D.3d 580, 581, 214 N.Y.S.3d 781).  Participants, however, are not deemed to have assumed the risks of reckless or intentional conduct or concealed or unreasonably increased risks (see Morgan v. State of New York, 90 N.Y.2d at 485, 662 N.Y.S.2d 421, 685 N.E.2d 202;  Turcotte v. Fell, 68 N.Y.2d 432, 439, 510 N.Y.S.2d 49, 502 N.E.2d 964;  Sisino v. Island Motocross of N.Y., Inc., 41 A.D.3d 462, 464, 841 N.Y.S.2d 308).  Here, the evidence submitted by the defendant in support of the motion raised triable issues of fact as to whether the manner in which the decedent was operating the ATV unreasonably enhanced the risk of injury and whether the doctrine of primary assumption of risk applies to this case (see Vanborkulo v. Keller's Motor Sports, Ltd., 71 A.D.3d 874, 875–876, 897 N.Y.S.2d 478;  Demelio v. Playmakers, Inc., 63 A.D.3d 777, 880 N.Y.S.2d 710).  Since the defendant failed to establish her prima facie entitlement to judgment as a matter of law dismissing the amended complaint, it is not necessary to review the sufficiency of the plaintiffs’ opposition papers (see Winegrad v. New York Univ. Med. Ctr., 64 N.Y.2d 851, 853, 487 N.Y.S.2d 316, 476 N.E.2d 642).

Accordingly, the Supreme Court should have denied the defendant's motion for summary judgment dismissing the amended complaint.

LASALLE, P.J., FORD, VOUTSINAS and GOLIA, JJ., concur.