Rigano v. Coram Bus Service, Inc.

Order, Supreme Court, Suffolk County (Alan Oshrin, J.), entered on or about February 24,1995, which, inter alia, denied defendants’, Ski Windham Corp. and Ski America, Inc., motion for summary judgment dismissing the complaint, unanimously modified, on the law, to the extent of dismissing plaintiff’s claim for punitive damages, and otherwise affirmed, without costs. Summary judgment dismissal of three causes of action was clearly unwarranted where the case is replete with conflicting evidence and varying inferences which could be drawn therefrom. Material issues of fact include whether the decedent was skiing out of control and beyond his ability; whether defendants created additional risks that are not generally associated with the sport of skiing; whether defendants negligently permitted the relevant ski trail to become hazardous to skiers; and, whether the barrier fence in question was adequate under the circumstances. While decedent may have assumed a risk involved in partaking in the sport of skiing, and while General Obligations Law article 18 sets forth numerous risks inherent in the sport of skiing, it cannot he said, as a matter of law, that decedent assumed all the risks under the instant circumstances (see, Maddox v City of New York, 66 NY2d 270). As to defendant Ski America, the owner of the property which leased the space to Ski Windham, summary judgment in its favor was unwarranted, since there is no evidence indicating that Ski Windham was to assume all the duties and responsibilities normally associated with a landowner (see, Basso v Miller, 40 NY2d 233). However, we find the record fails to adequately support plaintiff’s claim that defendants’ conduct could warrant the imposition of punitive damages (Prozeralik v Capital Cities Communications, 82 NY2d 466, 479). We have considered defendants-appellants’ other contentions and find them to be without merit. Concur—Murphy, P. J., Sullivan, Ellerin, Nardelli and Mazzarelli, JJ.