Mongello v. Resort

Appellate Division of the Supreme Court of the State of New York

Feb 13, 1996

Versions:224 A.D.2d 502

638 N.Y.S.2d 166

1996 N.Y. App. Div. LEXIS 1178

—In a negligence action to recover damages for personal injuries and wrongful death, the plaintiff appeals from an order of the Supreme Court, Suffolk County (Cohalan, J.), dated November 17, 1994, which granted the motion of the Detective’s Endowment Association, Inc., to dismiss the complaint insofar as asserted against it pursuant, inter alia, to CPLR 3211 (a) (7) for failure to state a cause of action.

Ordered that the order is affirmed, with costs.

Since the defendant Detective’s Endowment Association, Inc., was merely sponsoring the ski trip attended by the decedent and neither controlled nor maintained the operation of the ski slope where the accident occurred and was not realistically in a position to assume such control, the existence of a duty owed to the decedent by the aforementioned defendant has not been established (see, Johnson v Cherry Grove Is. Mgt., 175 AD2d 827; Vogel v West Mtn. Corp., 97 AD2d 46).

The plaintiff’s reliance on Cohen v Heritage Motor Tours (205 AD2d 105) is misplaced inasmuch as she does not allege that the Detective’s Endowment Association directed the decedent to ski down the slope where the accident occurred. Rosenblatt, J. P., Sullivan, Copertino, Santucci and Goldstein, JJ., concur.