Paulino v. Braun

Paulino v Braun (2021 NY Slip Op 03668)

Paulino v Braun

2021 NY Slip Op 03668

Decided on June 10, 2021

Appellate Division, First Department

Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.

This opinion is uncorrected and subject to revision before publication in the Official Reports.

Decided and Entered: June 10, 2021
Before: Manzanet-Daniels, J.P., Gische, Oing, Shulman, JJ.

Index No. 22499/17 Appeal No. 14040 Case No. 2021-00544

[*1]Manuel D. Paulino, Plaintiff-Appellant,

v

Menachem Braun, Defendant-Respondent.

Gropper Law Group PLLC, New York (Joshua D. Gropper of counsel), for appellant.

Morris Duffy Alonso & Faley, New York (Iryna S. Krauchanka of counsel), for respondent.

Order, Supreme Court, Bronx County (Elizabeth A. Taylor, J.), entered on or about July 29, 2020, which granted defendant's motion for summary judgment dismissing the complaint, unanimously affirmed, without costs.

In this action in which plaintiff was injured when, as a passenger sightseeing on defendant's boat, he stood up as the boat was rising up and down as a result of passing waves, then slipped and fell, defendant established entitlement to judgment as a matter of law based on the doctrine of primary assumption of the risk. Defendant's evidence showed that plaintiff's injuries arose from commonly appreciated risks inherent in the recreational activity in which he was engaged (see Morgan v State of New York, 90 NY2d 471, 484 [1997]).

Plaintiff's argument that even assuming that the primary assumption of the risk doctrine applies, he could not be deemed to have assumed certain increased risks beyond those inherent in the recreational activity, including the risks created by defendant's alleged reckless conduct in operating the boat, the presence of alcohol on board, the absence of life jackets, and his inexperience with boats. This argument is conclusory and otherwise unsupported by expert opinion or the circumstances of the incident (see Jin Chung v Lehmann, 144 AD3d 563 [1st Dept 2016], lv denied 29 NY3d 902 [2017]).

THIS CONSTITUTES THE DECISION AND ORDER OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.

ENTERED: June 10, 2021