James LO PICCOLO, respondent, v. TOWN OF OYSTER BAY, etc., appellant.
In an action to recover damages for personal injuries, the appeal is from an order of the Supreme Court, Nassau County (DiNoto, J.), entered April 7, 1998, which denied a 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 was injured while ice skating at a Town of Oyster Bay skating rink. The plaintiff alleged that the ice was not maintained in proper condition. However, the plaintiff's own testimony at a pretrial hearing indicated that he had actual knowledge of defects in the surface of the ice and nevertheless continued to skate. Under these circumstances, the doctrine of assumption of the risk mandates the granting of summary judgment dismissing the complaint (see, Byrne v. Westchester County, 178 A.D.2d 575, 578 N.Y.S.2d 836).
MEMORANDUM BY THE COURT.