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

433.1
CA 10-02055
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. 1.)


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 May 26, 2010 in a personal injury action. The
order granted those parts of plaintiff’s motion seeking summary
judgment on the issue of negligence and dismissal of the affirmative
defenses of contributory negligence.

     It is hereby ORDERED that the order so appealed from is
unanimously modified on the law by denying those parts of plaintiff’s
motion with respect to liability, including negligence, and those
parts of plaintiff’s motion seeking dismissal of the affirmative
defenses that allege plaintiff’s culpable conduct insofar as they are
based on implied assumption of risk and as modified the order is
affirmed without costs in accordance with the following Memorandum:
Plaintiff commenced this action to recover damages for injuries she
sustained while she was a patron at defendant Magruder’s Restaurant &
Pub Inc. (Magruder’s). According to plaintiff, she was flipped, head
over heels, during a bar trick performed by Matt Dombrowski
(defendant), the owner of Magruder’s. Plaintiff moved for partial
summary judgment on liability and for dismissal of defendants’
affirmative defenses to the extent that defendants alleged plaintiff’s
contributory negligence, i.e., her own culpable conduct, and
assumption of risk, both implied and primary. By the order in appeal
No. 1, Supreme Court granted those parts of the motion with respect to
defendants’ negligence, rather than liability, and with respect to the
affirmative defenses of contributory negligence. By the order in
appeal No. 2, the court treated plaintiff’s motion for leave to
reargue as one for leave to renew her prior motion with respect to the
affirmative defense of assumption of risk and, upon renewal, granted
the prior motion with respect to that affirmative defense.
                                 -2-                           433.1
                                                         CA 10-02055

     We begin by addressing the order in appeal No. 2. We agree with
defendants that the court erred upon renewal in granting plaintiff’s
prior motion insofar as it sought dismissal of the affirmative defense
that alleges plaintiff’s assumption of risk. We note at the outset
that, contrary to plaintiff’s contention, defendants raised the issue
of implied assumption of risk in opposition to plaintiff’s original
motion and thus preserved their present contention for our review (cf.
Henner v Everdry Mktg. & Mgt., Inc., 74 AD3d 1776, 1777-1778).

     We conclude on the record before us that there are triable issues
of fact whether the doctrines of implied and primary assumption of
risk may reduce or bar plaintiff’s recovery. “Care must be taken to
distinguish between two distinct doctrines of assumption of risk. The
first[, i.e., implied assumption of risk,] is embraced within the CPLR
article 14-A concept of ‘culpable conduct attributable to the
[plaintiff]’ . . . It is akin to comparative negligence; it does not
bar recovery, but diminishes recovery in the proportion to which it
contributed to the injuries . . . [In contrast, however,] . . .
‘primary’ assumption of risk is not a measure of plaintiff’s
comparative fault, but a measure of the defendant’s duty of care.
Primary assumption of risk eliminates or reduces the tortfeasor’s duty
of care to the plaintiff and, in the former case, constitutes a
complete bar to recovery” (Lamey v Foley, 188 AD2d 157, 162-163
[citations omitted]). Here, the court erred, upon renewal, in
granting plaintiff’s prior motion with respect to the affirmative
defense of assumption of risk insofar as it concerns plaintiff’s
implied assumption of risk because the record contains evidence
submitted by defendants that raises a triable issue of fact whether
plaintiff engaged in “a voluntary encounter with a known risk of harm”
(Beadleston v American Tissue Corp., 41 AD3d 1074, 1076).
Furthermore, “[u]nder the particular circumstances of this case, there
are [triable] issues of fact as to whether the doctrine of primary
assumption of . . . risk is applicable to” plaintiff’s participation
in a bar trick performed by defendant (Berfas v Town of Oyster Bay,
286 AD2d 466; cf. Trupia v Lake George Cent. School Dist., 14 NY3d
392). We therefore reverse the order in appeal No. 2 insofar as
appealed from, deny the motion upon renewal seeking dismissal of the
affirmative defense of assumption of risk, and reinstate that
affirmative defense.

     With respect to the order in appeal No. 1, in support of the
motion plaintiff submitted, inter alia, defendant’s deposition
testimony and other evidence establishing that plaintiff was free from
contributory negligence (see generally Hinds v Wal-Mart Stores, Inc.,
52 AD3d 1218, 1218-1219; Lopez v WS Distrib., Inc., 34 AD3d 759, 760),
and defendants failed to raise a triable issue of fact with respect to
that issue (see generally Zuckerman v City of New York, 49 NY2d 557,
562). Although in their answer defendants expressly raised only
plaintiff’s culpable conduct in their affirmative defenses alleging
contributory negligence, culpable conduct in fact includes both
contributory negligence and implied assumption of risk (see generally
CPLR 1411). Inasmuch as we have previously held that there is a
triable issue of fact with respect to plaintiff’s implied assumption
                                 -3-                           433.1
                                                         CA 10-02055

of risk, we affirm the order in appeal No. 1 insofar as it grants that
part of plaintiff’s motion with respect to contributory negligence
only, and we modify the order by denying that part of the motion with
respect to plaintiff’s implied assumption of risk and reinstating that
part of the defense.

     Furthermore, because there is a triable issue of fact with
respect to the defense of primary assumption of risk, the court erred
in granting, by the order in appeal No. 1, that part of plaintiff’s
motion seeking partial summary judgment on the issue of defendants’
negligence. With regard to that defense, primary “ ‘assumption of
risk . . . is really a principle of no duty, or no negligence and so
denies the existence of any underlying cause of action’ ” (Morgan v
State of New York, 90 NY2d 471, 485). Thus, “when a plaintiff assumes
the risk of participating in a sporting [or recreational] event, ‘the
defendant is relieved of legal duty to the plaintiff; and being under
no duty, [the defendant] cannot be charged with negligence’ ” (Cotty v
Town of Southampton, 64 AD3d 251, 254, quoting Turcotte v Fell, 68
NY2d 432, 438). We therefore further modify the order in appeal No. 1
by denying in its entirety that part of plaintiff’s motion seeking
partial summary judgment on liability.




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