Patricia R. MacIsaac, as administratrix of the estate of John R. MacIsaac, deceased, and Patricia R. MacIsaac, individually, appellant,
Nassau County, respondent. Index No. 6575/13
Argued-April 21, 2017
Pontisakos & Brandman, P.C., Garden City, NY (Elizabeth
Mark Meyerson of counsel), for appellant.
Carnell T. Foskey, County Attorney, Mineola, NY (Christi
Marie Kunzig of counsel), for respondent.
WILLIAM F. MASTRO, J.P., MARK C. DILLON, SHERI S. ROMAN,
VALERIE BRATHWAITE NELSON, JJ.
DECISION & ORDER
action, inter alia, to recover damages for wrongful death,
etc., the plaintiff appeals from an order of the Supreme
Court, Nassau County (Sher, J.), entered February 8, 2016,
which granted the defendant's motion for summary judgment
dismissing the complaint.
the order is reversed, on the law, with costs, and the
defendant's motion for summary judgment dismissing the
complaint is denied.
August 9, 2012, John R. MacIsaac (hereinafter the decedent)
was walking from the 12th green to the 13th tee box on a golf
course at Eisenhower Park when he allegedly tripped on a
sprinkler system coupling valve in a grass-covered hole,
causing him to fall to the ground and sustain injuries which
ultimately led to his death. The plaintiff, as administratrix
of the decedent's estate, and individually, commenced
this action against the defendant, which owned the premises,
alleging, inter alia, wrongful death. The defendant moved for
summary judgment dismissing the complaint on the ground,
among others, that the plaintiff's claims were barred by
the doctrine of primary assumption of risk. The Supreme Court
granted the defendant's motion. We reverse.
the doctrine of primary assumption of 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" (Morgan v State of New
York, 90 N.Y.2d 471, 484). This includes risks
associated with the construction of the playing surface and
any open and obvious condition on it (see Ziegelmeyer v
United States Olympic Comm., 7 N.Y.3d 893, 894;
Sykes v County of Erie, 94 N.Y.2d 912, 913;
Maddox v City of New York, 66 N.Y.2d 270, 277;
Simon v Hamlet Windwatch Dev., LLC, 120 A.D.3d 657,
657-658; Galski v State of New York, 289 A.D.2d 195,
196). The defendant established its prima facie entitlement
to judgment as a matter of law on the ground that the
doctrine of primary assumption of risk applied (see Sykes
v County of Erie, 94 N.Y.2d at 913; Simon v Hamlet
Windwatch Dev., LLC, 120 A.D.3d at 657-658; Galski v
State of New York, 289 A.D.2d at 196).
in opposition, the plaintiff raised a triable issue of fact
as to whether the subject condition was concealed or
unreasonably increased the risks inherent in the golf course
(see Morgan v State of New York, 90 N.Y.2d at 485;
Simone v Doscas, 142 A.D.3d 494, 494-495; Brown
v Roosevelt Union Free Sch. Dist., 130 A.D.3d 852, 854).
In this regard, the Supreme Court erred in rejecting the
affidavits and photographic evidence submitted by the
plaintiff in opposition to the motion. Contrary to the
court's determination, the plaintiff was not required to
identify John Flower as a notice witness prior to filing the
note of issue. The disclosure requirements of CPLR 3101
include the obligation to disclose the names of witnesses
"if they are material and necessary to the prosecution
or defense of the action" (Zellman v Metropolitan
Transp. Auth., 40 A.D.2d 248, 251; see CPLR
3101). Here, Flower did not possess information material and
necessary to the prosecution or defense of the action. In his
affidavit, Flower merely authenticated certain photographs,
most of which had been submitted by the decedent with his
notice of claim prior to his death. Consequently, the court
should not have rejected Flower's affidavit and the
attendant photographs on the ground that the plaintiff had
failed to identify Flower as a notice witness prior to the
filing of the note of issue. As a related matter, the court
improperly rejected the affidavit of the plaintiff's
expert on the ground that he relied upon the photographs.
Further, the court should not have rejected the two remaining
affidavits from individuals who were disclosed to the
defendant prior to the filing of the note of issue.
the Supreme Court should have denied the defendant's
motion for ...