Thornberg v. Town of Islip

Davis & Ferber, LLP, Islandia, N.Y. (Melissa B. Pittelli of counsel), for appellant.

Goldberg Segalla, LLP, Garden City, N.Y. (Brian McElhenny and Brendan T. Fitzpatrick of counsel), for respondent.

Opinion In an action to recover damages for personal injuries, the plaintiff appeals, as limited by her brief, from so much of an order of the Supreme Court, Suffolk County ORDERED that the order is affirmed insofar as appealed from, with costs.

The Supreme Court properly granted that branch of the motion of the defendant Town of Islip which was for summary judgment dismissing the amended complaint insofar as asserted against it. The Town established its prima facie entitlement to judgment as a matter of law pursuant to the doctrine of primary assumption of the risk. The Town demonstrated that being struck in the head without warning by an errantly hit golf ball is a risk inherent in playing golf (see Anand v. Kapoor, 15 N.Y.3d 946, 948, 917 N.Y.S.2d 86, 942 N.E.2d 295 ; Rinaldo v. McGovern, 78 N.Y.2d 729, 733, 579 N.Y.S.2d 626, 587 N.E.2d 264 ; Delaney v. MGI Land Dev., LLC, 72 A.D.3d 1254, 898 N.Y.S.2d 695 ; see generally Lundin v. Town of Islip, 207 A.D.2d 778, 779, 616 N.Y.S.2d 394 ), and that it had not concealed or unreasonably enhanced the condition that allegedly led to the subject accident (see Custodi v. Town of Amherst, 20 N.Y.3d 83, 88, 957 N.Y.S.2d 268, 980 N.E.2d 933 ).

In opposition, the plaintiff failed to raise a triable issue of fact (see Lombardo v. Cedar Brook Golf & Tennis Club, Inc., 39 A.D.3d 818, 834 N.Y.S.2d 326 ; see also Alvarez v. Prospect Hosp., 68 N.Y.2d 320, 324, 508 N.Y.S.2d 923, 501 N.E.2d 572 ). The plaintiff's expert, who opined that the golf course was negligently designed and maintained, failed to identify any specific industry standard upon which he relied in concluding that the Town was negligent (see Bohan v F.R.P. Sheet Metal Contr. Corp., 58 A.D.3d 781, 872 N.Y.S.2d 168 ; Milligan v. Sharman, 52 A.D.3d 1238, 1239, 859 N.Y.S.2d 827 ).

MASTRO, J.P., LEVENTHAL, MALTESE and DUFFY, JJ., concur.