        SUPREME COURT OF THE STATE OF NEW YORK
           Appellate Division, Fourth Judicial Department

263
CA 14-01423
PRESENT: SMITH, J.P., CARNI, SCONIERS, AND VALENTINO, JJ.


HOLLY M. REDMOND, PLAINTIFF-RESPONDENT,

                    V                             MEMORANDUM AND ORDER

DENIS M. REDMOND AND CANDACE G. REDMOND,
DEFENDANTS-APPELLANTS.


BARTH SULLIVAN BEHR, BUFFALO (LAURENCE D. BEHR OF COUNSEL), FOR
DEFENDANTS-APPELLANTS.

MAXWELL MURPHY, LLC, BUFFALO (ALAN D. VOOS OF COUNSEL), FOR
PLAINTIFF-RESPONDENT.


     Appeal from an order of the Supreme Court, Niagara County (Frank
Caruso, J.), entered April 3, 2014. The order denied the motion of
defendants for summary judgment dismissing the complaint.

     It is hereby ORDERED that the order so appealed from is
unanimously affirmed without costs.

     Memorandum: Plaintiff commenced this action seeking damages for
personal injuries she allegedly sustained by striking her head on the
bottom of an above-ground pool after sliding head first down a water
slide. Plaintiff alleges that the incident occurred shortly after
1:00 a.m., during a party that defendants hosted at their home.
Defendants moved for summary judgment dismissing the complaint,
contending that the doctrine of assumption of risk barred the action,
and that plaintiff’s actions were the sole proximate cause of her
injuries. Defendants appeal from an order denying their motion. We
affirm.

     In its recent decisions on the subject, the Court of Appeals has
“generally restricted the concept of assumption of . . . risk to
particular athletic and recreative activities in recognition that such
pursuits have ‘enormous social value’ even while they may ‘involve
significantly heightened risks’ ” (Custodi v Town of Amherst, 20 NY3d
83, 88, quoting Trupia v Lake George Cent. Sch. Dist., 14 NY3d 392,
395). “Consistent with this justification, each [Court of Appeals]
case[] applying the doctrine involved a sporting event or recreative
activity that was sponsored or otherwise supported by the defendant,
or occurred in a designated athletic or recreational venue” (id.).
The Court of Appeals has “clarified that the doctrine ‘must be closely
circumscribed if it is not seriously to undermine and displace the
principles of comparative causation’ ” (id. at 89, quoting Trupia, 14
                                 -2-                           263
                                                         CA 14-01423

NY3d at 395). Thus, the Court of Appeals has concluded that, “[a]s a
general rule, application of assumption of . . . risk should be
limited to cases appropriate for absolution of duty, such as personal
injury claims arising from sporting events, sponsored athletic and
recreative activities, or athletic and recreational pursuits that take
place at designated venues” (id.).

     Here, we conclude that defendants failed to meet their initial
burden on the motion inasmuch as their submissions failed to establish
that plaintiff’s injuries arose from a sporting event, an athletic or
recreative activity sponsored by defendants, or an athletic or a
recreational pursuit that took place at a designated venue (see
Custodi, 20 NY3d at 89). To the contrary, plaintiff was injured in
the early morning hours while engaged in what reasonably could be
characterized as “horseplay” during a party (see Wolfe v North Merrick
Union Free Sch. Dist., 122 AD3d 620, 621-622; see generally Trupia, 14
NY3d at 396). Consequently, Supreme Court properly denied the motion
without regard to the sufficiency of plaintiff’s opposition papers
(see Winegrad v New York Univ. Med. Ctr., 64 NY2d 851, 853).

     We have considered defendants’ remaining contention and conclude
that it is without merit.




Entered:   March 27, 2015                       Frances E. Cafarell
                                                Clerk of the Court
