Whitt v. Mason

—In an action to recover damages for personal injuries, the defendant Jennifer Levine, as Administrator c.t.a. of the Estate of Pamela K. Levine, deceased, appeals from so much of an order of the Supreme Court, Dutchess County (Jiudice, J.), dated October 23, 1992, as denied her cross motion for summary [717] judgment dismissing the complaint insofar as it is asserted against her. Ordered that the order is affirmed insofar as appealed from, with costs. The plaintiff was allegedly injured when she fell off a horse on property which the appellant’s decedent owned as a tenant-in-common with the defendant Gene Mason. It is undisputed that the horse was owned by Gene Mason. The plaintiff presented evidence that the horse "spooked” easily and that she was not warned of this before she rode the horse. The injury occurred when the horse moved sharply after the plaintiff attempted to ride it through a puddle of water in the area where she was exercising the horse. The court properly denied summary judgment to the appellant. Triable issues of fact exist, including whether the appellant’s decedent had notice of the horse’s tendency to "spook” and of the condition of the land, and her involvement in the activities which occurred on the property (see, Appel v Charles Heinsohn, Inc., 91 AD2d 1029, 1030, affd 59 NY2d 741). We have examined the appellant’s remaining contentions and find them to be without merit. Lawrence, J. P., Ritter, Hart and Krausman, JJ., concur.