LO PICCOLO v. TOWN OF OYSTER BAY (1999)

Supreme Court, Appellate Division, Second Department, New York.

James LO PICCOLO, respondent, v. TOWN OF OYSTER BAY, etc., appellant.

Decided: April 26, 1999

GUY JAMES MANGANO, P.J., HOWARD MILLER, SANDRA J. FEUERSTEIN, ROBERT W. SCHMIDT and NANCY E. SMITH, JJ.

Carole A. Burns & Associates, Mineola, N.Y. (Patricia M. McDonagh of counsel), for appellant. Russell D. Mauro, Wantagh, N.Y., for respondent.

In an action to recover damages for personal injuries, the appeal is from an order of the Supreme Court, Nassau County (DiNoto, J.), entered April 7, 1998, which denied a motion for summary judgment dismissing the complaint.

ORDERED that the order is reversed, on the law, with costs, the motion is granted, and the complaint is dismissed.

The plaintiff was injured while ice skating at a Town of Oyster Bay skating rink. The plaintiff alleged that the ice was not maintained in proper condition. However, the plaintiff's own testimony at a pretrial hearing indicated that he had actual knowledge of defects in the surface of the ice and nevertheless continued to skate. Under these circumstances, the doctrine of assumption of the risk mandates the granting of summary judgment dismissing the complaint (see, Byrne v. Westchester County, 178 A.D.2d 575, 578 N.Y.S.2d 836).

MEMORANDUM BY THE COURT.

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