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Philip Wollruch, Plaintiff-Appellant, Esther Wollruch v. Robert Jaekel

New York Supreme and/or Appellate Courts Appellate Division, First Department


February 21, 2013

PHILIP WOLLRUCH, PLAINTIFF-APPELLANT, ESTHER WOLLRUCH,
PLAINTIFF,
v.
ROBERT JAEKEL,
DEFENDANT-RESPONDENT, EMPIRE SKATE CLUB OF NEW YORK, INC.,
DEFENDANT.

Wollruch v Jaekel

Decided on February 21, 2013

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.

Friedman, J.P., Sweeny, Renwick, Freedman, Roman, JJ.

Order, Supreme Court, New York County (Joan A. Madden, J.), entered on or about March 28, 2012, which, insofar as appealed from, denied plaintiff Philip Wollruch's (plaintiff) motion for summary judgment and granted defendant Robert Jaekel's cross motion for summary judgment dismissing the complaint as against him, unanimously affirmed, without costs.

Dismissal of the complaint as against defendant Jaekel was appropriate in this action where plaintiff was injured while participating in a sponsored in-line skating event, when Jaekel lost his balance and collided with him, after another participant veered into Jaekel's path. Although Vehicle and Traffic Law § 1231 makes the provisions of that statute applicable to in-line skaters on a roadway, plaintiff failed to raise a triable issue regarding whether Jaekel violated an applicable provision of the Vehicle and Traffic Law.

Moreover, plaintiff, a participant in a sponsored sporting event, assumed the risk of injury from a fall or collision with another skater, since falling is an inherent part of the sport (see e.g. Anand v Kapoor, 15 NY3d 946, 947-948 [2010]; compare Custodi v Town of Amherst, 20 NY3d 83 [2012]). Indeed, plaintiff testified that falling was "[j]ust part of skating," and he failed to present evidence that Jaekel's conduct was reckless or intentional.

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

ENTERED: FEBRUARY 21, 2013

CLERK

20130221

© 1992-2013 VersusLaw Inc.



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