RESNICK v. GRIBETZ

On review of submissions pursuant to section 500.4 of the Rules of the Court of Appeals (22 N.Y.CRR 500.4), order reversed, with costs, and a new trial granted. There is no evidence in this record to support a finding of express, as opposed to implied, assumption of risk ( compare, Arbegast v Board of Educ., 65 N.Y.2d 161). The trial court erred in charging the jury, over plaintiff's objection, that a finding of assumption of risk would bar recovery.

Concur: Chief Judge WACHTLER and Judges JASEN, MEYER, SIMONS, KAYE and TITONE. Taking no part: Judge ALEXANDER.