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

308
CA 12-01304
PRESENT: CENTRA, J.P., FAHEY, CARNI, SCONIERS, AND MARTOCHE, JJ.


STEPHEN F. MENTER, PLAINTIFF-RESPONDENT,

                    V                             MEMORANDUM AND ORDER

CITY OF OLEAN, DEFENDANT-APPELLANT.


BOUVIER PARTNERSHIP, LLP, BUFFALO (NORMAN E.S. GREENE OF COUNSEL), FOR
DEFENDANT-APPELLANT.

FESSENDEN LAUMER & DEANGELO, JAMESTOWN (MARY B. SCHILLER OF COUNSEL),
FOR PLAINTIFF-RESPONDENT.


     Appeal from an order of the Supreme Court, Cattaraugus County
(Michael L. Nenno, A.J.), entered February 28, 2012 in a personal
injury action. The order denied defendant’s motion for summary
judgment.

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

     Memorandum: Plaintiff commenced this action seeking to recover
damages for injuries he sustained when he slipped from a diving board
at a pool owned by defendant while he was preparing to dive into the
pool. Defendant moved for summary judgment dismissing the complaint
on the ground that plaintiff assumed the risks associated with diving
in the pool. Supreme Court denied the motion, and we affirm.

     The doctrine of primary assumption of risk “generally constitutes
a complete defense to an action to recover damages for personal
injuries . . . and applies to the voluntary participation in sporting
activities” (Gardner v Town of Tonawanda, 48 AD3d 1083, 1084 [internal
quotation marks omitted]). Under that doctrine, “a person who
voluntarily participates in a sporting activity generally consents, by
his or her participation, to those injury-causing events, conditions[]
and risks [that] are inherent in the activity” (Cotty v Town of
Southhampton, 64 AD3d 251, 253; see generally Morgan v State of New
York, 90 NY2d 471, 482-486; Turcotte v Fell, 68 NY2d 432, 438-440;
Belvedere v Holiday Val., Inc., 60 AD3d 1459, 1460). The owner of
recreational premises owes a duty “to exercise care to make the
conditions as safe as they appear to be. If the risks of the activity
are fully comprehended or perfectly obvious, plaintiff has consented
to them and defendant has performed its duty” (Morgan, 90 NY2d at 484
[internal quotation marks omitted]). A plaintiff, however, will not
be deemed to have consented to “concealed or unreasonably increased
                                 -2-                           308
                                                         CA 12-01304

risks” (id. at 485). Thus, in assessing whether the relevant duty has
been breached, it must be determined “whether the conditions caused by
the defendant[’s] negligence are unique and created a dangerous
condition over and above the usual dangers that are inherent in the
sport” (id. [internal quotation marks omitted]).

     Here, we conclude that defendant failed to meet its initial
burden on the motion inasmuch as its submissions indicate that the
nonskid material on the surface of the diving board had not been
recently reapplied, and establish that the area in the middle of the
diving board, from which plaintiff fell, was worn and smoother than
the other areas of the board (cf. id. at 488; see generally Zuckerman
v City of New York, 49 NY2d 557, 562). Even assuming, arguendo, that
defendant met its initial burden on the motion, we conclude that
plaintiff raised an issue of fact in opposition thereto (see Morgan,
90 NY2d at 488; Zuckerman, 49 NY2d at 562). Plaintiff submitted
evidence that he fell while walking down the middle of the diving
board, that there was no nonskid material on the middle of the board,
and that the area from which he fell was smooth, slippery and
significantly worn.

     Finally, we note that defendant’s reliance on Cook v Town of
Oyster Bay (267 AD2d 192) is of no moment. There, the infant
plaintiff slipped and injured herself while using defendant’s diving
board, and the Second Department reversed an order denying defendant’s
motion for summary judgment dismissing the complaint (see id. at 192-
193). Our review of the record in Cook reveals that the facts of that
case are distinguishable from the facts presented here. In Cook, the
plaintiff admitted that she slipped due to a puddle of water on the
diving board and that such water was “a normal thing” that was “there
everyday.” Additionally, unlike this case, one of the defendant’s
employees in Cook testified that the defendant had reapplied the
nonskid surface to the diving board numerous times over the years.
Here, by contrast, one of defendant’s employees testified that he was
not aware of any surface coatings being applied to the diving board in
the two years preceding plaintiff’s accident. Another of defendant’s
employees testified that, although he had applied black tread and
nonskid materials to the board’s surface several years ago, he had not
since reapplied those materials. Finally, numerous employees of
defendant admitted that the middle of the board, where plaintiff had
slipped, was worn smoother than the outer edges, had less nonskid
material on it, and had worn paint.




Entered:   April 26, 2013                      Frances E. Cafarell
                                               Clerk of the Court
