SHAMELASHVILI v. CITY OF NEW YORK

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

Miriam SHAMELASHVILI, etc., et al., appellants, v. CITY OF NEW YORK, et al., respondents.

Decided: June 28, 1999

LAWRENCE J. BRACKEN, J.P., DAVID S. RITTER, MYRIAM J. ALTMAN and WILLIAM D. FRIEDMANN, JJ. Michael S. Winokur, Rego Park, N.Y., for appellants. Michael D. Hess, Corporation Counsel, New York, N.Y. (Leonard Koerner and Edward F.X. Hart of counsel), for respondent City of New York. Purcell & Ingrao, P.C., Mineola, N.Y. (Anthony Marino of counsel), for respondent City Ice Sports, Inc.

In an action to recover damages for personal injuries, etc., the plaintiffs appeal, as limited by their brief, from so much of an order of the Supreme Court, Queens County (Polizzi, J.), dated May 18, 1998, as granted the motion of the defendant City Ice Sports, Inc., and the cross motion of the defendant City of New York for summary judgment dismissing the complaint insofar as asserted against them.

ORDERED that the order is affirmed insofar as appealed from, with one bill of costs.

 The Supreme Court did not improvidently exercise its discretion in permitting the defendants to file their respective motion and cross motion for summary judgment beyond the time limit provided by CPLR 3212(a) (see, Quinlan v. Kaufman, 258 A.D.2d 453, 684 N.Y.S.2d 597).   Further, the court properly granted the motion and cross motion for summary judgment.   The infant plaintiff was injured while ice skating when she was suddenly and abruptly struck by another skater, whose conduct could not have been anticipated or avoided by any degree of supervision.   Under the circumstances, liability cannot be imposed on the defendants, the owner and the operator of the skating rink (see, Winter v. City of New York, 208 A.D.2d 827, 617 N.Y.S.2d 833;  Blashka v. South Shore Skating, 193 A.D.2d 772, 598 N.Y.S.2d 74;  Bua v. South Shore Skating, 193 A.D.2d 774, 598 N.Y.S.2d 75).

MEMORANDUM BY THE COURT.

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