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PLAINTIFF FELL FROM A HORSE DURING A RIDING LESSON, NEITHER THE ASSUMPTION OF THE RISK DOCTRINE NOR THE SIGNED RELEASED WARRANTED SUMMARY JUDGMENT IN FAVOR OF DEFENDANT HORSE FARM, THE COMPLAINT SHOULD NOT HAVE BEEN DISMISSED (FOURTH DEPT).

The Fourth Department, reversing Supreme Court, over a dissent, determined that the assumption of the risk doctrine and the signed release did not warrant summary judgment in favor of defendant in this horseback-riding injury case. Plaintiff fell from a horse during a riding lesson:

… [I]t is undisputed that plaintiff was a beginner and had never before attempted to mount or ride a horse, and the deposition testimony relied upon by defendants raises questions of fact whether defendants unreasonably increased the risks associated with mounting the horse by failing to give plaintiff adequate instructions and assistance based on her size, athleticism, and obvious struggles in attempting to mount the horse, and whether there were concealed risks of mounting the horse, i.e., whether the horse was “tacked” properly … . For the same reasons, we reject defendants’ contention, as an alternative ground for affirmance, that the written release established as a matter of law that, as per the language of the release, plaintiff expressly assumed “the unavoidable risks inherent in all horse-related activities” … .  Jones v Smoke Tree Farm, 2018 NY Slip Op 03299, Fourth Dept 5-4-18

​NEGLIGENCE (HORSES, PLAINTIFF FELL FROM A HORSE DURING A RIDING LESSON, NEITHER THE ASSUMPTION OF THE RISK DOCTRINE NOR THE SIGNED RELEASED WARRANTED SUMMARY JUDGMENT IN FAVOR OF DEFENDANT HORSE FARM, THE COMPLAINT SHOULD NOT HAVE BEEN DISMISSED (FOURTH DEPT))/ANIMAL LAW (HORSES, PLAINTIFF FELL FROM A HORSE DURING A RIDING LESSON, NEITHER THE ASSUMPTION OF THE RISK DOCTRINE NOR THE SIGNED RELEASED WARRANTED SUMMARY JUDGMENT IN FAVOR OF DEFENDANT HORSE FARM, THE COMPLAINT SHOULD NOT HAVE BEEN DISMISSED (FOURTH DEPT))/HORSES (PLAINTIFF FELL FROM A HORSE DURING A RIDING LESSON, NEITHER THE ASSUMPTION OF THE RISK DOCTRINE NOR THE SIGNED RELEASED WARRANTED SUMMARY JUDGMENT IN FAVOR OF DEFENDANT HORSE FARM, THE COMPLAINT SHOULD NOT HAVE BEEN DISMISSED (FOURTH DEPT))/ASSUMPTION OF RISK (HORSES, PLAINTIFF FELL FROM A HORSE DURING A RIDING LESSON, NEITHER THE ASSUMPTION OF THE RISK DOCTRINE NOR THE SIGNED RELEASED WARRANTED SUMMARY JUDGMENT IN FAVOR OF DEFENDANT HORSE FARM, THE COMPLAINT SHOULD NOT HAVE BEEN DISMISSED (FOURTH DEPT))/RELEASE (HORSE RIDING LESSONS, PLAINTIFF FELL FROM A HORSE DURING A RIDING LESSON, NEITHER THE ASSUMPTION OF THE RISK DOCTRINE NOR THE SIGNED RELEASED WARRANTED SUMMARY JUDGMENT IN FAVOR OF DEFENDANT HORSE FARM, THE COMPLAINT SHOULD NOT HAVE BEEN DISMISSED (FOURTH DEPT))

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IN THIS PARTITION ACTION, THERE WAS NO PENDING MOTION FOR SUMMARY JUDGMENT AND THERE WAS NO INDICATION THE PARTIES HAD LAID THEIR PROOF BARE SUCH THAT THE COURT COULD CONSIDER GRANTING SUMMARY JUDGMENT; SUMMARY JUDGMENT SHOULD NOT HAVE BEEN AWARDED (FOURTH DEPT). ​
THE MAJORITY CONCLUDED PLAINTIFF WAS DOING ROUTINE MAINTENANCE WHICH WAS NOT PART OF A CONSTRUCTION OR RENOVATION PROJECT WHEN HE WAS ELECTROCUTED AND FELL FROM A LADDER; THEREFORE THE LABOR LAW 240(1) AND 241(6) CAUSES OF ACTION WERE DISMISSED; THE TWO-JUSTICE DISSENT ARGUED PLAINTIFF WAS “CLEANING” WITHIN THE MEANING OF LABOR LAW 240(1) AND WAS DOING CONSTRUCTION OR RENOVATION WORK WITHIN THE MEANING OF LABOR LAW 241(6) (FOURTH DEPT).
AN APPELLATE COURT CANNOT CONSIDER A MOTION NOT RULED UPON BELOW; MATTER REMITTED FOR A RULING ON DEFENDANT’S MOTION FOR A TRIAL ORDER OF DISMISSAL (FOURTH DEPT).
In Absence of a “Special Relationship” Insurer Not Liable for Agent’s Negligent Misrepresentation
THE QUALIFIED DOMESTIC RELATION ORDER (QDRO) AS DESCRIBED IN THE STIPULATION OF SETTLEMENT INCORPORATED BUT NOT MERGED INTO THE JUDGMENT OF DIVORCE CANNOT BE MODIFIED BY THE COURT; NO APPEAL LIES OF RIGHT FROM A QDRO, AN APPLICATION FOR LEAVE TO APPEAL MUST BE MADE (FOURTH DEPT).
Failure to Warn Defendant that Failure to Appear Would Result in a Harsher Sentence Required Vacation of the Harsher Sentence
THE RECORD DID NOT SUPPORT A FINDING THAT DEFENDANT, WHO WAS MENTALLY ILL, UNDERSTOOD THE APPEAL WAIVER; DEFENDANT SHOULD HAVE BEEN ACCORDED YOUTHFUL OFFENDER STATUS.
LAW FIRM’S SUMMARY JUDGMENT MOTION SHOULD HAVE BEEN GRANTED, CRITERIA FOR LEGAL MALPRACTICE WHERE AN ACTION HAS BEEN SETTLED EXPLAINED.

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