Pacheco v. Snellenburg , 726 N.Y.S.2d 624 ( 2001 )

—Order, Supreme Court, New York County (Carol Huff, J.), entered February 15, 2000, which granted defendant’s motion for summary judgment dismissing the complaint, unanimously reversed, on the law, without costs, the motion for summary judgment denied, and the complaint reinstated.

The motion court improperly granted summary judgment dismissing the complaint on an assumption of risk theory. We find that the collision with defendant bicyclist was not an ordinary risk inherent in the activity of jogging in the park (see, Morgan v State of New York, 90 NY2d 471, 484). Given plaintiff’s position on the park roadway, immediately alongside runners participating in an organized foot race who occupied the two narrow inner lanes, she did not assume the risk of being struck by a bicyclist. Further, there exists a question of fact as to whether defendant exercised reasonable care in riding his bicycle in an area a “couple of feet” away from the runners and from the plaintiff, rather than in the outermost part of the lanes designated for such purpose. Concur — Nardelli, J. P., Andrias, Wallach, Lerner and Rubin, JJ.