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

691
CA 11-02220
PRESENT: SMITH, J.P., FAHEY, PERADOTTO, SCONIERS, AND MARTOCHE, JJ.


DAWN M. CLOSE, PLAINTIFF-APPELLANT,

                    V                              MEMORANDUM AND ORDER

DARIEN LAKE THEME PARK AND CAMPING RESORT, INC.,
DEFENDANT-RESPONDENT.


BENNETT, DIFILIPPO & KURTZHALTS, LLP, EAST AURORA (MAURA C. SEIBOLD OF
COUNSEL), FOR PLAINTIFF-APPELLANT.

DAMON MOREY LLP, BUFFALO (AMY ARCHER FLAHERTY OF COUNSEL), FOR
DEFENDANT-RESPONDENT.


     Appeal from an order of the Supreme Court, Erie County (Patrick
H. NeMoyer, J.), entered January 28, 2011 in a personal injury action.
The order granted the motion of defendant for summary judgment and
dismissed 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 that she sustained on a water ride in an amusement park owned
by defendant. Contrary to plaintiff’s contention, Supreme Court
properly granted the motion of defendant for summary judgment
dismissing the complaint. “[B]y engaging in a sport or recreational
activity, a participant consents to those commonly appreciated risks
which are inherent in and arise out of the nature of the sport
generally and flow from such participation” (Morgan v State of New
York, 90 NY2d 471, 484; see Anand v Kapoor, 15 NY3d 946, 947-948;
Turcotte v Fell, 68 NY2d 432, 439; Maddox v City of New York, 66 NY2d
270, 277-278). Awareness of the risk is “ ‘to be assessed against the
background of the skill and experience of the particular plaintiff’ ”
(Morgan, 90 NY2d at 486, quoting Maddox, 66 NY2d at 278). Here,
“defendant sustained its burden of proving its prima facie entitlement
to judgment as a matter of law . . . by presenting evidence that the
plaintiff understood and voluntarily assumed the risks inherent in the
activity at issue” (Leslie v Splish Splash at Adventureland, Inc., 1
AD3d 320, 321). Contrary to plaintiff’s contention, she failed to
raise a triable issue of fact whether defendant engaged in reckless or
intentional conduct or whether there existed a dangerous condition
that concealed or unreasonably increased the risks of the ride (see
Youmans v Maple Ski Ridge, Inc., 53 AD3d 957, 959; see also Loewenthal
                                 -2-                         691
                                                       CA 11-02220

v Catskill Funland, 237 AD2d 262, 263-264).




Entered:   June 8, 2012                       Frances E. Cafarell
                                              Clerk of the Court
