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

433.2
CA 10-02086
PRESENT: SMITH, J.P., PERADOTTO, LINDLEY, AND MARTOCHE, JJ.


RACHEL T. BUCHANAN, PLAINTIFF-RESPONDENT,

                      V                           MEMORANDUM AND ORDER

MATT DOMBROWSKI, INDIVIDUALLY, AND MAGRUDER’S
RESTAURANT & PUB INC., DEFENDANTS-APPELLANTS.
(APPEAL NO. 2.)


SLIWA & LANE, BUFFALO (PAUL F. MURAK OF COUNSEL), FOR
DEFENDANTS-APPELLANTS.

KENNEY SHELTON LIPTAK NOWAK LLP, BUFFALO (RODGER P. DOYLE, JR., OF
COUNSEL), FOR PLAINTIFF-RESPONDENT.


     Appeal from an order of the Supreme Court, Erie County (Gerald J.
Whalen, J.), entered September 15, 2010 in a personal injury action.
The order, insofar as appealed from, granted plaintiff’s motion, upon
renewal, for summary judgment dismissing defendants’ assumption of
risk affirmative defense.

     It is hereby ORDERED that the order insofar as appealed from is
unanimously reversed on the law without costs, the motion upon renewal
seeking dismissal of the affirmative defense of assumption of risk is
denied and that affirmative defense is reinstated.

     Same Memorandum as in Buchanan v Dombrowski ([appeal No. 1] ___
AD3d ___ [Apr. 29, 2011]).




Entered:    April 29, 2011                      Patricia L. Morgan
                                                Clerk of the Court
