BELLORO v. CHICOMA

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

Oscar BELLORO, appellant, et al., plaintiff, v. Juan Carlos CHICOMA, et al., respondents.

Decided: June 28, 2004

MYRIAM J. ALTMAN, J.P., NANCY E. SMITH, GABRIEL M. KRAUSMAN, and PETER B. SKELOS, JJ. David L. Mejias & Associates, P.C., Westbury, N.Y. (Richard S. Finkel and Miguel Alvarado of counsel), for appellant. Cullen and Dykman Bleakley Platt, LLP, Brooklyn, N.Y. (Joseph Miller of counsel), for respondent Juan Carlos Chicoma. Faust Goetz Schenker & Blee, LLP, New York, N.Y. (Erika C. Aljens of counsel), for respondent Roberto Chicoma.

In an action to recover damages for personal injuries, etc., the plaintiff appeals from an order of the Supreme Court, Nassau County (Bucaria, J.), dated August 12, 2003, which granted the separate motions of the defendants Juan Carlos Chicoma and Roberto Chicoma for summary judgment dismissing the complaint insofar as asserted against them, and, in effect, searched the record and granted summary judgment to the defendant Oscar Melendez dismissing the complaint insofar as asserted against him.

ORDERED that the order is affirmed, with one bill of costs.

The Supreme Court correctly concluded that the doctrine of primary assumption of the risk relieved the defendants of any duty of care that they may have owed the plaintiff, even though the plaintiff's injury did not result from a leisure or sporting activity (see Westerville v. Cornell Univ., 291 A.D.2d 447, 737 N.Y.S.2d 389;  see also Davis v. Kellenberg Mem. High School, 284 A.D.2d 293, 725 N.Y.S.2d 588;  Conroy v. Marmon Enters., 253 A.D.2d 839, 678 N.Y.S.2d 372;  Bennett v. Town of Brookhaven, 233 A.D.2d 356, 650 N.Y.S.2d 752;  Sands v. Bonnie View on Lake George, 230 A.D.2d 902, 646 N.Y.S.2d 855).   The plaintiff assumed the risk of injury in attempting to enter his room through the second story window by climbing a ladder that was placed on top of another ladder.

In light of our determination, we do not reach the plaintiff's remaining contention.

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