Opinion
Index No.2018-52752
03-26-2021
NANCY ANTHONY, Plaintiff, v. AMBER FIREHOCK, CHRISTINE FIREHOCK, KARI MARINUCC,, SHAY DIVITTORIO, LEGENDALE STABLES and HORSE SENSE, Defendants.
Unpublished Opinion
DECISION AND ORDER
CHRISTI J. ACKER, J.S.C.
The following papers numbered 1-36 were considered in connection with the motion by Defendants Amber Firehock and Christine Firehock (hereinafter "Defendant Amber" and "Defendant Christine" respectively and "Defendants" collectively) for an Order pursuant to CPLR 3212 granting them summary judgment and dismissing Plaintiffs Amended Complaint:
Notice of Motion-Affirmation of Jeffrey D. Sherwin, Esq.-Exhibits A-M-
Memorandum of Law in Support...................................................................................1-16
Affirmation in Opposition of Levi Lipton, Esq.-Exhibits A-Q....................................17-34
Reply Affirmation of Jeffrey D. Sherwin, Esq.-Affidavit of Shay McCormack..........35-36
This action was commenced by Plaintiff Nancy Anthony ("Plaintiff) on or about August 31, 2018 and an Amended Complaint was thereafter filed on January 17, 2019. It is alleged that Plaintiff was injured on November 15, 2018 during a horseback riding lesson with Defendant Amber. The Amended Complaint asserts three causes of action against Defendants: Negligence, Negligent Misrepresentation and Strict Liability.
Plaintiff discontinued her claims against Defendants Kari Marinucci and Horse Sense on or about October 2, 2019. No answer or appearance has been interposed on behalf of Defendants Shay DiVittorio or Legendale Stables, nor has Plaintiff moved for default against them.
Facts
In or about September 2017, Plaintiff was driving on Creek Road in Hyde Park when she saw a sign advertising horseback riding lessons. The next day, she drove up the adjacent driveway to inquire about the lessons and when she reached the buildings at the end, she met Defendant Christine. Plaintiff told Defendant Christine that she wanted to take riding lessons and Defendant Christine advised that her daughter Amber was the instructor. Plaintiff gave Defendant Christine her telephone number and, according to Plaintiff, this was the sum and substance of the only conversation that she had with Defendant Christine.
The next day, Defendant Amber called Plaintiff and they agreed that Plaintiff would start taking lessons. When she met Defendant Amber in person, Plaintiff signed up for a package of six lessons arid paid Amber by check. Plaintiff told Defendant Amber that she was a beginner and that she had taken a few lessons approximately 25 years ago. On that same day, Plaintiff signed an "Equine Activity Release and Hold Harmless Agreement" (hereinafter referred to as "Release"). Although Plaintiff denies having read the Release, she acknowledges that she wrote her name on the first page and signed and dated the last page.
Prior to the incident at issue herein, Plaintiff had taken seven riding lessons with Defendant Amber while riding Amber's horse, Pilot. While the parties dispute the specifics of what occurred during these seven lessons, both agree that after completing six lessons, Plaintiff immediately signed up for a package of another six lessons.
On the day of her eighth lesson, Defendant Amber took Plaintiff out on a trail ride on Pilot. After approximately 10-15 minutes out on the trail, Pilot began to gallop back to the barn. The parties again have differing renditions about the interaction between Plaintiff and Defendant Amber and what caused Pilot to take off, but one fact remains uncontested: Plaintiff consciously chose to jump off the horse while it was running back to the barn. See Plaintiffs deposition transcript, pp. 181-183.
Indeed, Plaintiffs affidavit submitted in opposition appears designed to highlight this through a detailed denial of individual statements made by Defendant Amber at her deposition.
Defendants now move for summary judgment to dismiss the Amended Complaint. With respect to the claims against Defendant Christine, Defendants assert that there is no proof of culpable conduct by said Defendant. As to Defendant Amber, Defendants allege that Plaintiffs claims are barred by the Release that Plaintiff signed and that Plaintiffs claims against Amber are also subject to dismissal based upon the doctrine of primary assumption of risk. In support of their motion, Defendants submit the pleadings, Plaintiffs Verified Bill of Particulars, the deposition transcripts of Plaintiff, Defendant Christine and Defendant Amber, text messages between Plaintiff and Defendant Amber and the Release. In opposition, Plaintiff submits her own affidavit, the affidavit of William Barr, Professional Horseman and Freelance Trainer (hereinafter "Barr Affidavit"), the affidavit of Shay McCormack, f/k/a Shay DiVittorio, excerpts from the Facebook page of Legendale Stables, the audio recording and transcript of the 911 call made after Plaintiff s accident and medical records.
Discussion
The movant for summary judgment "bears the initial burden of demonstrating its prima facie entitlement to the requested relief." Roos v. King Constr., 116 N.Y.S.3d 344, 346 [2nd Dept. 2020], citing Winegrad v New York Univ. Med. Ctr., 64 N.Y.2d 851, 853. Failure to make the initial showing "requires denial of the motion, regardless of the sufficiency of the opposition papers." Junger v. John V. Dinan Assoc, Inc., 164 A.D.3d 1428, 1429 [2nd Dept. 2018], citing Winegrad, supra. Only when the movant has met its prima facie entitlement "does the burden then shift to the party opposing summary judgment to tender evidence, in a form admissible at trial, sufficient to raise a triable issue of fact." Roos, supra, citing Alvarez v Prospect Hosp., 68 N.Y.2d 320, 324 [1986].
In opposition, "the nonmoving party need only rebut the prima facie showing made by the moving party so as to demonstrate the existence of a triable issue of fact." Poon v. Nisanov, 162 A.D.3d 804, 806 [2d Dept. 2018], citing Alvarez, supra. "The function of a court on a motion for summary judgment is not to resolve issues of fact or determine matters of credibility, but merely to determine whether such issues exist." 114 Woodbury Realty, LLC v. 10 Bethpage Rd, LLC, 178 A.D.3d 757, 759 [2d Dept. 2019]. Summary judgment should be granted only where there are no material and triable issues of fact and the papers shall be scrutinized in the light most favorable to the party opposing the motion. Id. Such relief is a drastic remedy that deprives a litigant of his or her day in court that should only be employed when there is no doubt as to the absence of triable issues. Castlepoint Ins. Co. v. Command Sec. Corp., 144 A.D.3d 731, 733 [2d Dept 2016].
Defendant Christine
Although the Amended Complaint alleges claims of negligence, negligent misrepresentation and strict liability against Defendant Christine, it appears from Plaintiffs opposition that she now relies solely on her claim of negligent misrepresentation against said Defendant. "It is well settled that '[a] claim for negligent misrepresentation requires the plaintiff to demonstrate (1) the existence of a special or privity-like relationship imposing a duty on the defendant to impart correct information to the plaintiff; (2) that the information was incorrect; and (3) reasonable reliance on the information' [citation omitted]." Mandarin Trading Ltd v. Wildenstein, 16 N.Y.3d 173, 180 [2011]. As relevant herein, "liability for negligent misrepresentation has been imposed only on those persons who possess unique or specialized expertise, or who are in a special position of confidence and trust with the injured party such that reliance on the negligent misrepresentation is justified." Kimmell v. Schaefer, 89 N.Y.2d257, 263 [1996].
The record before this Court is completely devoid of evidence that Defendant Christine had any relationship with Plaintiff, let alone one that could be categorized as "special" or "privity-like." Plaintiff concedes that she spoke to Defendant Christine for the first and only time on the day that she stopped to inquire about riding lessons. That conversation lasted, at most, for five to six minutes. There is no evidence that Defendant Christine was in a special position of confidence or trust with Plaintiff such that Plaintiffs reliance on any purported negligent misrepresentation made by Defendant Christine could be justified.
Plaintiff contends that this is a "textbook" case of "negligent misrepresentation by omission." Levi Affirmation, ¶38. Yet, Plaintiff fails to provide any case law to support such a claim. Indeed, the standard for a claim for negligent misrepresentation requires that a defendant have imparted incorrect information, not that defendant withheld information. See Mandarin Trading Ltd., supra.
Moreover, contrary to Plaintiffs arguments in opposition, a mother's alleged "unique or specialized expertise" regarding her child is not the type of expertise that would impose a duty upon Defendant Christine to impart correct information to Plaintiff within the meaning of the case law. Importantly, Plaintiff has also failed to identify any substantive misrepresentation that was made by Defendant Christine. Without evidence of the necessary special relationship between Plaintiff and Defendant Christine, and no identified misrepresentation, Plaintiffs claim for negligent misrepresentation against Defendant Christine fails and Defendants' motion for summary judgment is granted.
See Kimmell, supra ("Professionals, such as lawyers and engineers, by virtue of their training and expertise, may have special relationships of confidence and trust with their clients, and in certain situations we have imposed liability for negligent misrepresentation when they have failed to speak with care").
Because Plaintiff does not allege that she can maintain an action for negligence or strict liability against Defendant Christine, said Defendant is entitled to the dismissal of the Amended Complaint in its entirety.
Defendant Amber
Defendants advance two grounds upon which the Amended Complaint should be dismissed against Defendant Amber - the Release and primary assumption of risk.
Release
The first paragraph of the Release indicates that Plaintiff has "read and understand[s], and freely and voluntarily enter[s] into this Release and Hold Harmless Agreement with Legendale Stables LLC, understanding that the Release and Hold Harmless Agreement is a waiver of any and all liability(ies)." The next paragraph states that Plaintiff understands the potential dangers that she could incur in mounting, riding or walking said horse and specifically includes a release of Defendant Amber "from any liability whatsoever in the event of injury or damage of any nature (or perhaps even death) to me or anyone else caused by or incidental to my electing to mount and ride a horse."
Additionally, the Release provides that Plaintiff voluntarily agrees and warrants to release and hold harmless Defendant Amber
from any liability whatsoever, relating to injuries known, unknown, or otherwise not herein disclosed; including but not limited to, injuries, death or property damage from: mounting; riding; dismounting; walking; grooming; feeding; use of horse barn, paddock, trails or horse ring, in any capacity; falling off the horse whether horse is bucking, flipping, spooked; or my failure to understand any equine professional's direction . .. Amber Firehock relating to my riding or otherwise use and control, or lack thereof, of my horse or the horse I have been assigned to.
The final paragraph of the Release is in all capital letters and again states that Plaintiff has read the document and understands that it is "a promise not to sue and to release the stable, its owners, employees and agents for all claims." The paragraph ends with the caution that in "signing this agreement you are giving up certain legal rights, including the right to recover damages in case of injury, death or property damage, arising out of you [sic] . . . presence and/or participation in equine activities at stable, including injury, death or property damage arising out of the negligence of stable." The Release is also signed by Defendant Amber.
"Generally, 'a valid release constitutes a complete bar to an action on a claim which is the subject of the release' [citations and internal quotation marks omitted]." Durand v. Salvation Army, 186 A.D.3d 1325, 1326 [2d Dept. 2020]. "Tf the language of a release is clear and unambiguous, the signing of a release is a jural act binding on the parties' [citations and internal quotation marks omitted]." Id. A plain reading of the Release demonstrates that Plaintiff agreed to release Defendant Amber from liability for any injury resulting from her horseback riding lessons, including Defendant Amber's own negligence. See Boateng v. Motorcycle Safety Sck, Inc., 51 A.D.3d 702, 703-04 [2d Dept. 2008]. The Release is similarly clear in reciting that Plaintiff was aware of and assumed the risks associated with riding a horse. Id.
Despite Plaintiffs numerous assertions that she never read the Release and was unaware of any dangers in riding and participating in horseback riding, she unquestionably testified that her signature appears on the Release, which is dated prior to her commencing lessons with Defendant Amber. See Chieco v. Paramarketing, Inc., 228 A.D.2d 462, 463 [2d Dept. 1996] (the plaintiffs statement that he did not read or understand the document he signed is unpersuasive). Furthermore, the Release details the "potential dangers" attendant with horseback riding and states, in capital letters, that Plaintiff "concluded that the risks involved and the release and waiver of liability is worth the pleasure of a horseback riding experience." Significantly, the record demonstrates that Plaintiff was injured after the horse she was riding was "spooked," which is a situation specifically referenced in the Release.
In addition, even assuming arguendo that the Release did not insulate Defendant Amber from her own negligence, Defendants have provided evidence that Plaintiff was injured when she chose to jump from the horse; not when she was thrown from the horse. As a result, Defendant Amber has also established her prima facie entitlement to judgment as a matter of law by showing that Plaintiffs injuries were not due to any negligence on Defendant Amber's part but rather, occurred after "the horse becoming frightened, an inherent, usual, and ordinary risk associated with horseback riding and which the injured plaintiff had assumed." Trummer v. Niewisch, 17 A.D.3d 349, 350 [2d Dept. 2005]. Accordingly, "the release is enforceable to the extent of insulating the defendants from liability for injuries resulting from a fall from a horse caused by reasons other than their negligence." Id.; see also, Glenn v. Annunziata, 72 A.D.3d 886, 888 [2d Dept. 2010] ("The release from liability is nevertheless enforceable to the extent that it insulates the stable defendants from liability for injuries resulting from a fall from a horse caused by reasons other than the stable defendants' negligence."). Thus, Defendants have established prima facie that Plaintiffs claims herein are barred by the Release.
In opposition, Plaintiff argues that the Release is barred by General Obligations Law ("GOL") § 5-326. That section provides that
[e]very covenant, agreement or understanding in or in connection with, or collateral to, any contract, membership application, ticket of admission or similar writing, entered into between the owner or operator of any .. . place of amusement or recreation, or similar establishment and the user of such facilities, pursuant to which such owner or operator receives a fee or other compensation for the use of such facilities, which exempts the said owner or operator from liability for damages caused by or resulting from the negligence of the owner, operator or person in charge of such establishment, or their agents, servants or employees, shall be deemed to be void as against public policy and wholly unenforceable.
In short, GOL §5-326 "prohibits an owner or operator of a recreational facility from enforcing a release given by an individual who has paid it a fee or other compensation for the use of the facility." Boateng, supra at 703; see also Stuhlweissenburg v. Town of Orangetown, 223 A.D.2d 633, 634 [2d Dept. 1996] ("To void a release of liability executed by a user of a recreational facility pursuant to General Obligations Law § 5-326, the individual must have paid a fee for use of the facility"); Howell v. Dundee Fair Ass 'n, 73 N.Y.2d 804, 806 [1988] ("The statute voids any agreement, not only those embodied on a ticket of admission which purports to exempt owners or operators from liability when a fee or other compensation is paid for the use of a facility").
Here, Defendants have made an initial showing that the fee paid by Plaintiff to Defendant Amber "constituted tuition for a course of instruction and not a use fee for use of a recreational facility as contemplated by the statute." Boateng, supra. In response, Plaintiff focuses on the nature of the facility, rather than on the nature of the fee paid by Plaintiff to Defendant Amber.
Plaintiff contends that the Release herein is void because the facility at which Plaintiff took her lessons was a "mixed-use" facility that was not used for purely instructional purposes. Nevertheless, Plaintiff does not deny that the money she paid to Defendant Amber was tuition for riding lessons as opposed to general access to the premises. Instead, Plaintiff maintains that because the premises were used for other "recreational" uses, GOL §5-326 voids the Release.
However, the case upon which Plaintiff primarily relies actually supports Defendants' argument. In Jones v. Smoke Tree Farm, 161 A.D.3d 1590 [4th Dept, 2018], the plaintiff was injured when she fell from a horse during a riding lesson at the defendants' stables. In affirming the denial of plaintiff s motion to dismiss the affirmative defendant of release, the Fourth Department determined that the release signed by the plaintiff therein was not void pursuant to GOL §5-326. The court held that it was undisputed that "plaintiff 'enrolled in [a] course, paid tuition, not a fee, for lessons and was injured during one of her instructional periods' [citation omitted]." Id. at 1591. The court also found that the record established that any recreational use of defendants' facility was ancillary to its primary educational purpose. Id. The same is true here. In any event, to the extent Plaintiff argues that the trail ride at issue herein was "non-instructional," it is undisputed that it immediately followed a lesson and Plaintiff did not pay an additional fee for the ride. Thus, even if the Court accepts Plaintiffs position, the GOL would not void the Release because of a trail ride that was complimentary.
Plaintiff further cites Millan v. Brown, 295 A.D.2d 409, 411 [2d Dept. 2002], but this case also does not support her argument. The Second Department noted, in dicta, that the plaintiff therein paid a $30 instruction fee directly to the defendant for a horseback riding lesson and was injured while taking a lesson. The court stated that "[o]n these facts, the riding establishment was not a 'place of amusement or recreation' within the meaning of General Obligations Law § 5-326." The same could be said about these facts. The remainder of the cases relied upon by Plaintiff are factually distinguishable.
As Plaintiff has failed to produce any evidence to raise a genuine issue of material fact as to whether she paid a fee for admission to or use of the Defendants' facility, General Obligations Law § 5-326 does not void the Release executed by Plaintiff prior to commencing her horseback riding lessons. Stone v. Bridgehampton Race dr., 217 A.D.2d 541, 543 [2d Dept. 1995]. Consequently, the Release is valid and Defendants' motion to dismiss this action based upon the Release is granted.
Primary Assumption of Risk
In addition to the foregoing, Defendants have established prima facie entitlement to summary judgment under the doctrine of primary assumption of risk. Pursuant to this doctrine, "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." Fenty v. Seven Meadows Farms, Inc., 108 A.D.3d 588 [2d Dept. 2013]. "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." Id. A plaintiff will not be deemed to have assumed the risks of reckless or intentional conduct, or concealed or unreasonably increased risks. '"The risks of falling from a horse or a horse acting in an unintended manner are risks inherent in the sport of horseback riding' [citation omitted]." Quintanilla v. Thomas Sch. of Horsemanship, Inc., 129 A.D.3d 815, 816 [2d Dept. 2015]; see also Quigley v. Frost Valley YMCA, 85 A.D.3d 752 [2d Dept. 2011] (Plaintiff assumed the risk of a horse acting in an unintended manner, which is a danger inherent in the sport of horseback riding). Defendants have submitted prima facie evidence that Plaintiff assumed the risk of injury, because a horse acting in an unintended manner is a danger inherent in the sport of horseback riding. Eslin v. Cty. of Suffolk, 18 A.D.3d 698, 699 [2d Dept. 2005].
Therefore, the burden shifts to Plaintiff to rebut Defendants' prima facie showing. Plaintiff first argues that she did not assume risks that were either concealed from or were unexplained to her. In support thereof, Plaintiff alleges numerous instances where Defendant Amber either misrepresented or failed to apprise her of various risks in riding Pilot on the trail. Plaintiff posits that she did not assume risks that were unreasonably increased by Defendant Amber's actions and/or omissions. This argument is bolstered by Plaintiffs expert affidavit, which identifies more than 40 instances of Defendant Amber's alleged negligence. Counsel cites to many cases, arguing that both the expert opinion and the issues of fact warrant the denial of the Defendants' motion. See e.g. Sara W. by Henny W. v. Rocking Horse Ranch Corp., 169 A.D.3d 1342, 1342-43 [2d Dept. 2019].
"To be sure, plaintiff has identified disputed issues of fact. But factual disputes are not enough; they must relate to material issues." Forrest v. Jewish Guild for the Blind, 3 N.Y.3d 295, 312 [2004]. Despite Plaintiffs lengthy list of alleged bad acts, they ultimately do not relate to "material issues." Indeed, the instant case is factually distinct from every case cited by both Plaintiff and Defendants in one critical manner - Plaintiff herein was injured when she chose to jump off a galloping horse. She was not thrown from the horse, nor did she fall from the horse against her will. See e.g. Fenty, supra and Quintanilla, supra. The reason Plaintiffs argument fails is two-fold. As noted, the horse acted in a manner which is a commonly appreciated risk inherent to horseback riding. But then, it was Plaintiffs own decision after the horse took off which caused her injuries, as opposed to harm caused by an unknown or unreasonably increased risk. Further, any inference that Plaintiff would have suffered an even worse injury had she chosen not to jump off the horse is purely speculative and without expert support. Since Plaintiff failed to raise any triable issues of fact, Defendants' motion to dismiss the Amended Complaint against Defendant Amber must be granted. See Fenty supra.
Plaintiffs counsel asserts that Plaintiff was "panicked and fearful of being decapitated by forest branches" and she "chose to jump into the grass, rather than risk being struck in the head by the low-hanging trees in the wooded area." Levi Affirmation in Opposition, ¶ 89 and ¶35. However, these conclusions are not supported by Plaintiffs own testimony.
The Court notes that it appears that Plaintiff has abandoned her Third Cause of Action for strict liability, which is asserted against all Defendants. The Amended Complaint contends that Pilot had vicious propensities and that Plaintiff was injured as a result of said vicious propensities. "[T]he owner of a domestic animal who either knows or should have known of that animal's vicious propensities will be held liable for the harm the animal causes as a result of those propensities [citations omitted]. Vicious propensities include the 'propensity to do any act that might endanger the safety of the persons and property of others in a given situation' [citation omitted]." Collier v. Zambito, 1 N.Y.3d 444, 446 [2004]. However, "a vicious propensity cannot consist of 'behavior that is normal or typical for the particular type of animal in question' [citation omitted]." Bloomer v. Shauger, 21 N.Y.3d 917, 918 [2013] (plaintiff injured when defendant's horse jerked its head back while she was holding its halter). As case law demonstrates that it is normal or typical for a horse to be spooked or to act in an unintended manner (see Quintanilla, supra), there is no evidence in the record that Plaintiff was injured as a result of any vicious propensity of Pilot. The Third Cause of Action for strict liability is dismissed in its entirety.
The Court has considered the additional contentions of the parties not specifically addressed herein and finds them unavailing. To the extent any relief requested by either party was not addressed by the Court, it is hereby denied. Accordingly, it is hereby
ORDERED that Defendants' motion for summary judgment is GRANTED in its entirety and the Amended Complaint is dismissed.
The foregoing constitutes the Decision and Order of the Court.