Belloro v. Chicoma

Jun 28, 2004
Versions:8 A.D.3d 598
779 N.Y.S.2d 231
2004 N.Y. App. Div. LEXIS 9251

*599In an action to recover damages for personal injuries, etc., the plaintiff appeals from an order of the Supreme Court, Nassau County (Bucaria, J.), dated August 12, 2003, which granted the separate motions of the defendants Juan Carlos Chicoma and Roberto Chicoma for summary judgment dismissing the complaint insofar as asserted against them, and, in effect, searched the record and granted summary judgment to the defendant Oscar Melendez dismissing the complaint insofar as asserted against him.

Ordered that the order is affirmed, with one bill of costs.

The Supreme Court correctly concluded that the doctrine of primary assumption of the risk relieved the defendants of any duty of care that they may have owed the plaintiff, even though the plaintiffs injury did not result from a leisure or sporting activity (see Westerville v Cornell Univ., 291 AD2d 447 [2002]; see also Davis v Kellenberg Mem. High School, 284 AD2d 293 [2001]; Conroy v Marmon Enters., 253 AD2d 839 [1998]; Bennett v Town of Brookhaven, 233 AD2d 356 [1996]; Sands v Bonnie View on Lake George, 230 AD2d 902 [1996]). The plaintiff assumed the risk of injury in attempting to enter his room through the second story window by climbing a ladder that was placed on top of another ladder.

In light of our determination, we do not reach the plaintiffs remaining contention. Altman, J.P., Smith, Krausman and Skelos, JJ., concur.