Opinion
CA 02-01928
May 2, 2003.
Appeal from an order of Supreme Court, Oneida County (Shaheen, J.), entered November 9, 2001, which granted defendants' motion for summary judgment dismissing the amended complaint and denied plaintiff's cross motion for summary judgment.
LONGERETTA LAW FIRM, UTICA (DAVID A. LONGERETTA OF COUNSEL), FOR PLAINTIFF-APPELLANT.
GORMAN, WASZKIEWICZ, GORMAN SCHMITT, UTICA (WILLIAM P. SCHMITT OF COUNSEL), FOR DEFENDANTS-RESPONDENTS.
PRESENT: PIGOTT, JR., P.J., HURLBUTT, SCUDDER, LAWTON, AND HAYES, JJ.
MEMORANDUM AND ORDER
It is hereby ORDERED that the order so appealed from be and the same hereby is unanimously affirmed without costs.
Memorandum:
Plaintiff commenced this negligence action seeking to recover damages for injuries sustained by her 13-year-old son when he fell while attempting to slide down a 1-inch by 1-inch wooden handrail adjacent to the porch steps of a residence allegedly owned by defendants. Supreme Court properly granted defendants' motion for summary judgment dismissing the amended complaint based on the doctrine of primary assumption of risk. The record establishes that, in attempting to slide down the handrail, plaintiff's son was aware of and voluntarily assumed the risk of that activity, including the risk that the handrail might bend or shift beneath him ( see Davis v Kellenberg Mem. High School, 284 A.D.2d 293; see also Morgan v. State of New York, 90 N.Y.2d 471, 484; Turcotte v. Fell, 68 N.Y.2d 432, 439; Bierach v. Nichols, 248 A.D.2d 916; cf. Utkin v. Rademacher, 261 A.D.2d 840, lv dismissed 94 N.Y.2d 796).