MELI v. STAR POWER NATIONAL TALENT COMPANY

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

Celeste MELI, Respondent, v. STAR POWER NATIONAL TALENT COMPANY, Appellant.

Decided: May 29, 2001

FRED T. SANTUCCI, J.P., SONDRA MILLER, DANIEL F. LUCIANO, SANDRA J. FEUERSTEIN and THOMAS A. ADAMS, JJ. White, Fleischner & Fino, New York, N.Y. (Daniel M. Stewart of counsel), for appellant. Joseph A. Romagnolo (Pollack, Pollack, Isaac & DeCicco, New York, N.Y. [Brian J. Isaac] of counsel), for respondent.

In an action to recover damages for personal injuries, the defendant appeals from an order of the Supreme Court, Richmond County (Rosenberg, J.), dated November 16, 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.

The plaintiff alleges that she was injured while participating in a dance competition sponsored by the defendant when the makeshift stage where she was performing started to shake.   The defendant has conceded for the purpose of the underlying motion and this appeal that the stage was defective.   However, the plaintiff's own testimony at her examination before trial indicated that she had actual knowledge of this defect.   Under the circumstances, the doctrine of assumption of risk mandates the granting of summary judgment dismissing the complaint (see, Lo Piccolo v. Town of Oyster Bay, 260 A.D.2d 606, 688 N.Y.S.2d 670).   As a matter of law, there was no showing of inherent compulsion (see, Benitez v. New York City Bd. of Educ., 73 N.Y.2d 650, 658, 543 N.Y.S.2d 29, 541 N.E.2d 29).

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