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

1126
CA 16-00143
PRESENT: SMITH, J.P., DEJOSEPH, CURRAN, AND SCUDDER, JJ.


PETER C. BRADY, PLAINTIFF-APPELLANT,

                    V                             MEMORANDUM AND ORDER

MARY LOU DOMINO, DEFENDANT-RESPONDENT.


BROWN CHIARI LLP, BUFFALO (TIMOTHY M. HUDSON OF COUNSEL), FOR
PLAINTIFF-APPELLANT.

KENNEY SHELTON LIPTAK NOWAK LLP, BUFFALO (MAURICE L. SYKES OF
COUNSEL), FOR DEFENDANT-RESPONDENT.


     Appeal from an order of the Supreme Court, Erie County (Patrick
H. NeMoyer, J.), entered August 4, 2015. The order granted
defendant’s motion 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
injuries he sustained when he dove into the shallow end of an in-
ground residential swimming pool owned by defendant. Plaintiff
alleged that defendant was negligent because she failed to have a rope
and float assembly across the pool to delineate the shallow end from
the deep end. Supreme Court granted defendant’s motion for summary
judgment dismissing the complaint, concluding that plaintiff’s conduct
was reckless, unforeseeable to defendant, and the sole proximate cause
of his injuries. We affirm.

     It is well established that “[s]ummary judgment is an appropriate
remedy in swimming pool injury cases when from his ‘general knowledge
of pools, his observations prior to the accident, and plain common
sense’ . . . , the plaintiff should have known that, if he dove into
the pool, the area into which he dove contained shallow water and,
thus, posed a danger of injury” (Sciangula v Mancuso, 204 AD2d 708,
709). In light of that standard, we conclude that defendant met her
burden on the motion, and that plaintiff failed to raise an issue of
fact (see Zuckerman v City of New York, 49 NY2d 557, 562). The record
establishes that plaintiff lived on the same street as defendant, swam
in the subject pool multiple times prior to the accident, was aware
that striking the bottom of a pool was a risk when diving into the
shallow end of the pool, and acknowledged that he knew the depth
dimensions of defendant’s pool, i.e., where the shallow end started
and ended. Under those circumstances, we conclude that plaintiff’s
                                 -2-                          1126
                                                         CA 16-00143

reckless conduct was the sole proximate cause of his injuries (see
Howard v Poseidon Pools, 72 NY2d 972, 974-975; Smith v Stark, 67 NY2d
693, 694; Campbell v Muswim Pools, Inc., 147 AD2d 977, 978, lv denied
74 NY2d 608; see also Boltax v Joy Day Camp, 113 AD2d 859, 860-861,
affd 67 NY2d 617). Furthermore, even assuming, arguendo, that
defendant was negligent in failing to provide a “safety float line
separating the shallow and deep end of [her] pool, [we conclude that]
even the most liberal interpretation of the record eliminates any
cause of this accident other than the reckless conduct of plaintiff”
(Magnus v Fawcett, 224 AD2d 241, 241-242; see Finguerra v Conn, 280
AD2d 420, 421, lv denied 96 NY2d 714; Bird v Zelin, 237 AD2d 107,
108).

     In view of our determination, we see no need to address
plaintiff’s remaining contentions.




Entered:   December 23, 2016                    Frances E. Cafarell
                                                Clerk of the Court
