Julyan v. Chentfant

Order affirmed with costs. Memorandum: Supreme Court properly denied defendants’ motions for summary judgment seeking to dismiss the complaint in this action to recover damages for personal injuries suffered by plaintiffs’ son. In the procedural posture of these summary judgment motions by defendants, the court must accept plaintiffs’ evidence as true and grant it every favorable inference (see, Hartford Ins. Co. v General Acc. Group Ins. Co., 177 AD2d 1046, 1047). As this Court stated in Weller v Colleges of the Senecas (217 AD2d 280, 283), "There are two distinct doctrines of assumption of risk * * * The first is not an absolute defense, but rather, is based on comparative fault and reduces the recovery of plaintiff in the proportion that his culpable conduct contributed to the accident * * * The second, primary assumption of risk, is based on principles of duty and 903 is a complete bar to recovery [citations omitted].” Whether the factual situation in this case is one of comparative fault or primary assumption of risk is a question of fact for the jury (see, Weller v Colleges of the Senecas, supra, at 284; McKenney v Dominick, 190 AD2d 1021). All concur except Lawton and Wesley, JJ., who dissent and vote to reverse in the following Memorandum: