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Schoneboom v. B.B. King Blues Club & Grill

NEW YORK SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT


November 12, 2009

DAVID SCHONEBOOM, ET AL., PLAINTIFFS-APPELLANTS,
v.
B.B. KING BLUES CLUB & GRILL, DEFENDANT-RESPONDENT.

Order, Supreme Court, New York County (Marcy Friedman, J.), entered on February 26, 2009, which granted defendant's motion for summary judgment dismissing the complaint, unanimously affirmed, without costs.

Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.

This opinion is uncorrected and subject to revision before publication in the Official Reports.

Mazzarelli, J.P., Sweeny, Catterson, Acosta, Abdus-Salaam, JJ.

115632/06

Plaintiffs are barred by the doctrine of primary assumption of the risk from seeking damages for the injuries plaintiff David Schoneboom suffered when an identified person in a group of slam dancers slammed into him. After observing the open and obvious slam dancing from a safe vantage point, and fully appreciating the risk of colliding with a slam dancer, plaintiff nonetheless elected to place himself in close proximity to that activity, thereby assuming the risk that resulted in his injuries (see Morgan v State of New York, 90 NY2d 471, 484 [1997]; Turcotte v Fell, 68 NY2d 432, 437-439 [1986]; Roberts v Boys & Girls Republic, Inc., 51 AD3d 246, 247-248 [2008], affd 10 NY3d 889 [2008]).

Plaintiff's remaining arguments are unavailing.

THIS CONSTITUTES THE DECISION AND ORDER OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.

20091112

© 1992-2009 VersusLaw Inc.



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