VEGA v. COUNTY OF WESTCHESTER (2001)

In an action to recover damages for personal injuries, the defendant appeals from an order of the Supreme Court, Westchester County (Nastasi, J.), entered June 19, 2000, which denied its 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.

As the plaintiff, an intermediate-level ice skater, attempted to exit the defendant's rink, he allegedly was injured when he avoided a collision with five other skaters who cut in front of him.   The five skaters were holding hands in violation of the rink rule permitting only two people to skate together, and the plaintiff had observed them violating that rule at other times on that day.   The defendant moved for summary judgment dismissing the complaint, arguing that the plaintiff had assumed the risk of injury.   The Supreme Court denied the motion.

The plaintiff, as a voluntary participant in the sport of ice skating at the defendant's rink, assumed the risk of a sudden collision with other skaters (see, Surdi v. Roco Realty Co., 272 A.D.2d 393, 707 N.Y.S.2d 661;   Zambrana v. City of New York, 262 A.D.2d 87, 691 N.Y.S.2d 471, affd. 94 N.Y.2d 887, 706 N.Y.S.2d 76, 727 N.E.2d 573;  Kleiner v. Commack Roller Rink, 201 A.D.2d 462, 607 N.Y.S.2d 142).   Moreover, even though the five other skaters violated a rink rule, there is no evidence that their conduct was reckless or that they acted intentionally to harm the plaintiff.   Therefore, that conduct did not constitute an exception to the doctrine of assumption of the risk (see, Barton v. Hapeman, 251 A.D.2d 1052, 674 N.Y.S.2d 188;   Napoli v. Mount Alvernia, 239 A.D.2d 325, 657 N.Y.S.2d 197;  cf., Williams v. Skate Key, 240 A.D.2d 277, 659 N.Y.S.2d 741;  Nunez v. Recreation Rooms and Settlement, 229 A.D.2d 359, 645 N.Y.S.2d 789;  Shorten v. City of White Plains, 224 A.D.2d 515, 637 N.Y.S.2d 791), and the defendant's motion should have been granted.