STIRPE v. MALONEY SONS INC

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

Vivian D. STIRPE, Respondent, v. T.J. MALONEY & SONS INC., Appellant (And a Third-Party Action).

Decided: July 23, 1998

Before MIKOLL, J.P., and MERCURE, PETERS, SPAIN and CARPINELLO, JJ. Edward C. Fassett, Jr. (Karla Barz Conway, of counsel), Albany, for appellant. Parisi, Englert, Stillman, Coffey & McHugh (Kimberly E. Kenealy, of counsel), Schenectady, for respondent.

Appeal from an order of the Supreme Court (Lynch, J.), entered December 24, 1997 in Schenectady County, which denied defendant's motion for summary judgment dismissing the complaint and all cross claims.

On January 19, 1994, plaintiff, an employee of third-party defendant Schenectady County Community College (hereinafter SCCC), slipped and fell, injuring herself on a patch of ice outside the building where she was employed.   Several days earlier, there had been a water main break outside the entrance to this building and SCCC had hired defendant to repair the damage.   Although defendant constructed a snow fence around the work site, plaintiff claimed she slipped on ice which had extended beyond the barricade onto the blacktop for several feet, a condition which plaintiff was concededly aware of.   Plaintiff commenced this personal injury action and after issue was joined, defendant's motion for summary judgment was denied, prompting this appeal.

 There must be an affirmance.   Defendant argues that plaintiff allegedly assumed the risk of injury when she proceeded to walk in the area where she knew ice had formed rather than take another available exit.   It is well settled that the doctrine of primary assumption of risk which, if applicable, would operate as a complete bar to an injured plaintiff's claim, “is limited to plaintiffs injured while voluntarily participating in a sporting or entertainment activity” (Comeau v. Wray, 241 A.D.2d 602, 604, 659 N.Y.S.2d 347).   Since the doctrine is clearly not applicable here, the comparative negligence statute applies (see, CPLR 1411), which “merely reduces the plaintiff's recovery in the proportion which his or her conduct bears to the defendant's culpable conduct” (Cohen v. Heritage Motor Tours, 205 A.D.2d 105, 108, 618 N.Y.S.2d 387), a determination which must be left to the jury.

Finally, since the remaining argument advanced by defendant was not raised in its pleadings or motion papers before Supreme Court, it is not properly before this court for review (see, Sam v. Town of Rotterdam, 248 A.D.2d 850, 851-852, 670 N.Y.S.2d 62, 64, lv. denied 92 N.Y.2d 804, 677 N.Y.S.2d 779, 700 N.E.2d 318 [July 1, 1998] ).

ORDERED that the order is affirmed, with costs.

CARPINELLO, Justice.

MIKOLL, J.P., and MERCURE, PETERS and SPAIN, JJ., concur.

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