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

56
CA 15-01079
PRESENT: SMITH, J.P., CARNI, LINDLEY, AND DEJOSEPH, JJ.


ADAM DAILEY, PLAINTIFF-RESPONDENT,

                    V                              MEMORANDUM AND ORDER

LABRADOR DEVELOPMENT CORP., DEFENDANT-APPELLANT.


CHEROUTES ZWEIG, PC, HAMBURG (STEVEN M. ZWEIG OF COUNSEL), FOR
DEFENDANT-APPELLANT.

STANLEY LAW OFFICES, LLP, SYRACUSE (BRIANNE CARBONARO OF COUNSEL), FOR
PLAINTIFF-RESPONDENT.


     Appeal from an amended order of the Supreme Court, Onondaga
County (Donald A. Greenwood, J.), entered September 22, 2014. The
amended order denied the motion of defendant for summary judgment
dismissing the complaint.

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

      Memorandum: Plaintiff commenced this action seeking damages for
injuries he sustained when he was downhill skiing on defendant’s
premises. The accident occurred when plaintiff lost control while
skiing down a trail, fell to the ground, slid down the mountain for
approximately 15 to 30 feet, and collided headfirst into a metal pole
of a snowmaking machine. Although there was padding on the upper
portion of the pole, plaintiff collided with the lower, unpadded
portion of the pole. Defendant moved for summary judgment dismissing
the complaint on the ground that plaintiff assumed the risks
associated with the sport of skiing. We agree with plaintiff that
Supreme Court properly denied the motion. We note at the outset that
General Obligations Law § 18-107 provides that, “[u]nless otherwise
specifically provided in this article, the duties of skiers,
passengers, and ski operators shall be governed by common law” and,
contrary to defendant’s contention, the precise circumstances of
plaintiff’s accident are not covered by article 18 of the General
Obligations Law. Thus, the common law applies where, as here,
plaintiff is alleging the negligent placement and inadequate padding
of defendant’s snowmaking machines, a condition not “specifically
addressed by the statute” (Sytner v State of New York, 223 AD2d 140,
143).

     It is well settled under the common law that “[v]oluntary
participants in the sport of downhill skiing assume the inherent risks
                                 -2-                            56
                                                         CA 15-01079

of personal injury caused by, among other things, terrain, weather
conditions, ice, trees and man-made objects that are incidental to the
provision or maintenance of a ski facility” (Fabris v Town of
Thompson, 192 AD2d 1045, 1046). Here, although defendant met its
initial burden by establishing that the accident was caused by the
inherent risks in the sport of downhill skiing, plaintiff raised a
triable issue of fact by submitting the affidavit of his expert (see
generally Alvarez v Prospect Hosp., 68 NY2d 320, 324). Plaintiff’s
expert asserted therein that the snowmaking machine was on the ski
trail and was insufficiently padded, thus raising an issue of fact
whether defendant “failed to maintain its property in a reasonably
safe condition” (Basilone v Burch Hill Operations, 199 AD2d 779, 780;
see Fabris, 192 AD2d at 1046-1047; cf. Bennett v Kissing Bridge Corp.,
17 AD3d 990, 990-991, affd 5 NY3d 812).




Entered:   February 11, 2016                   Frances E. Cafarell
                                               Clerk of the Court
