Molod Spitz & DeSantis, P.C., New York, N.Y. (Marcy Sonneborn of counsel), for appellant.
Thomas Moore, White Plains, N.Y. (Andrea G. Sawyers and David R. Holland of counsel), for respondents.
DANIEL D. ANGIOLILLO, J.P., THOMAS A. DICKERSON, SANDRA L. SGROI, SYLVIA HINDS-RADIX, JJ.
DECISION & ORDER
In an action to recover damages for personal injuries, the plaintiff appeals from so much of an order of the Supreme Court, Orange County (Bartlett, J.), dated April 16, 2012, as granted the defendants' motion for summary judgment dismissing the complaint.
ORDERED that the order is affirmed insofar as appealed from, with costs.
The defendants established their prima facie entitlement to judgment as a matter of law by demonstrating that the plaintiff assumed the risk of falling off a horse while riding. Under the doctrine of primary assumption of the risk, by 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 (see Morgan v State of New York, 90 N.Y.2d 471, 484; Mendoza v Village of Greenport, 52 A.D.3d 788; Mondelli v County of Nassau, 49 A.D.3d 826; Joseph v New York Racing Assn., 28 A.D.3d 105). If the risks of the activity are fully comprehended or perfectly obvious, the plaintiff has consented to them and the defendant has performed its duty (see Turcotte v Fell, 68 N.Y.2d 432, 439; Zachary G. v Young Israel of Woodmere, 95 A.D.3d 946; Palladino v Lindenhurst Union Free School Dist., 84 A.D.3d 1194; Bendig v Bethpage Union Free School Dist., 74 A.D.3d 1263). However, a plaintiff will not be deemed to have assumed the risks of reckless or intentional conduct, or concealed or unreasonably increased risks (see Anand v Kapoor, 15 N.Y.3d 946; Morgan v State of New York, 90 N.Y.2d at 485; Mussara v Mega Funworks, Inc., 100 A.D.3d 185; Toro v New York Racing Assn., Inc., 95 A.D.3d 999).
The risks of falling from a horse or a horse acting in an unintended manner are inherent in the sport of horseback riding (see Toro v New York Racing Assn., Inc., 95 A.D.3d 999; Soloman v Taylor, 91 A.D.3d 1180; Kirkland v Hall, 38 A.D.3d 497). Awareness of a risk is to be assessed against the background of the skill and experience of the particular plaintiff (see Morgan v State of New York, 90 N.Y.2d at 486; Benitez v New York City Bd. of Educ., 73 N.Y.2d 650, 657; Weinberger v Solomon Schechter Sch. of Westchester, 102 A.D.3d 675; Morales v Beacon City School Dist., 44 A.D.3d 724). The record, including the plaintiff's own deposition testimony, shows that the plaintiff had sufficient skill and experience to appreciate the risk of falling off a horse while riding.
The plaintiff failed to raise a triable issue of fact in opposition to the defendants' prima facie showing. The plaintiff's alleged diminished mental capacity did not raise a triable issue of fact as to whether she was able to appreciate the risks inherent in horseback riding, in light of the evidence showing that she was an experienced horseback rider and was aware of the risk of falling off a horse (see Morlock v Town of N. Hempstead, 12 A.D.3d 652).
The plaintiff's claim that the defendants unreasonably increased the risks involved in horseback riding was also insufficient to raise a triable issue of fact. The affidavit of the plaintiff's expert was speculative, as the expert assumed facts not supported by the evidence in reaching a conclusion (see Cassano v Hagstrom, 5 N.Y.2d 643; Espinal v Jamaica Hosp. Med. Ctr., 71 A.D.3d 723; Rosato v 2550 Corp., 70 A.D.3d 803; Plainview Water Dist. v Exxon Mobil Corp., 66 A.D.3d 754; Erbstein v Savasatit, 274 A.D.2d 445). Furthermore, the expert lacked the knowledge, experience, training, or education to render an opinion as to the plaintiff's alleged disability or that the defendants should have been aware of that alleged disability (see Y.H. v Town of Ossining, 99 A.D.3d 760; de Hernandez v Lutheran Med. Ctr., 46 A.D.3d 517; Rosen v Tanning Loft, 16 A.D.3d 480).
Accordingly, the Supreme Court properly granted the defendants' motion for summary judgment ...