Papers Considered: 1. Defendant’s Notice of Motion for Summary Judgment filed February 5, 2021; Attorney Affirmation in Support filed February 5, 2021. Annexed Exhibits A-O. 2. Plaintiff’s Attorney Affirmation, filed March 26, 2021, in Opposition to Defendant’s Motion, Annexed Exhibits 1-4; Statement of Material Facts filed March 26, 2021; Memorandum of Law filed March 26, 2021 3. Defendant’s Attorney Affirmation in Reply filed March 29, 2021, Annexed Exhibit P. DECISION AND ORDER Before the Court is an unusual post-Note of Issue Motion for Summary Judgment as, despite the case having been litigated for three years and all discovery having been completed, the parties still dispute the nature of the claim. It is uncontested that, on March 11, 2018, Plaintiff was injured while skiing on Defendant’s premises and that Plaintiff was wearing skis provided by Defendant’s rental shop. Defendant now moves for Summary Judgment arguing that Plaintiff has failed to establish a product liability cause of action. Additionally, Defendant asserts that Plaintiffs claim is barred because she assumed the risk of the activity in which she partook. Plaintiff opposes the Motion, arguing that the issue before the Court is not an alleged product or ski trail defect, but that Defendant “negligently issued ski equipment” — specifically because it was not a woman’s boot and/or that the equipment may have had the wrong binding. Defendant, in reply, asserts that regardless of whether the case involves products liability or negligence, Plaintiff cannot succeed on her claim because “an expert [is] required to causally relate an alleged malfunction of an intricate piece of ski equipment to a specific injury” and “[t]here is no credible evidence that…[P]laintiff was provided with the wrong equipment or there was an error on the part of a technician.” Procedural History On September 19, 2018, Plaintiff commenced this action with a laundry list of claims. The Complaint alleged that the “accident was due solely to the negligence, carelessness, recklessness and wanton disregard of the defendant in failing to maintain, prevent and correct the obviously dangerous conditions of the equipment used in the Premises; in permitting the ski equipment to remain in a hazardous, and defective condition for a long period of time prior to plaintiffs accident; in failing to properly notify plaintiff of the dangers; in failing to inspect and repair the ski equipment before the accident occurred; in failing to properly assign and install the ski equipment on plaintiff and in sum creating and perpetuating the dangerous conditions which existed for a significant period of time that in the exercise of reasonable care defendant knew or should have known of its existence and corrected it.” On February 5, 2021, Defendant joined issue and sought to change venue. By Decision and Order dated May 7, 2019 (Elliott, III, J.), venue was moved to Greene County. By Stipulation and Order (Elliott, III, J.), the Note of Issue was to be filed on or before March 31, 2020. After several extension requests, the Note of Issue was ultimately filed on January 7, 2021. At a pre-trial conference held on April 9, 2021, a trial date of October 18, 2021 was set. No discovery issues were raised with the filing of the Note of Issue or during the pre-trial conference. Summary Judgment Summary judgment is a drastic remedy which will be granted only when the party seeking summary judgment has established prima facie entitlement to judgment as a matter of law by presenting competent evidence that there is no doubt as to the absence of a triable issue of fact (see Alvarez v. Prospect Hospital, 68 NY2d 320, 324 [1986]; McDay v. State, 138 AD3d 1359, 1359 [3d Dept 2016]). “The court’s function on a motion for summary judgment is issue finding not issue determination” (Gadani v. Dormitory Auth. of State of N.Y., 43 AD3d 1218, 1219 [3d 2007]; see Lacasse v. Sorbello, 121 AD3d 1241, 1242 [3d Dept 2014]), and this Court “must view the evidence in the light most favorable to the nonmoving party and accord such party the benefit of every reasonable inference that can be drawn therefrom” (Aretakis v. Cole’s Collision, 165 AD3d 1458, 1459 [3d Dept 2018]; see Healthcare Professionals Ins. Co. v. Parentis, 165 AD3d 1558, 1565 [3d Dept 2018]). Upon movant’s prima facie showing, the burden then shifts to the nonmoving party to establish by admissible proof, the existence of genuine issues of fact (see Zuckerman v. City of New York, 49 NY2d 557, 562 [1980]; Davis v. EAB-TAB Enters., 166 AD3d 1449, 1450 [3d Dept 2018]). However, in opposing a motion for summary judgment, the nonmoving party “must produce evidentiary proof in admissible form…or must demonstrate acceptable excuse for his [or her] failure to meet the requirement of tender in admissible form; mere conclusions, expressions of hope or unsubstantiated allegations or assertions are insufficient” (Zuckerman v. City of New York, 49 NY2d at 562; accord Miller v. Lu-Whitney, 61 AD3d 1043, 1047 [3d Dept 2009]; see Banco Popular North America v. Victory Taxi Management, Inc., 1 NY3d 381, 383 [2004] ["[A]verments merely stating conclusions, of fact or of law, are insufficient” to “defeat summary judgment”]). Discussion Defendant is entitled to judgment as a matter of law regarding Plaintiffs products liability claim. Defendant has made a prima facie showing of entitlement to judgment as a matter of law regarding alleged product liability. Generally, a person injured by an allegedly defective product “may claim that the product is defective either because there was a mistake in the manufacturing process, an improper design, or the manufacturer did not provide adequate warnings with regard to the use of the product” (Barclay v. Techno-Design, Inc., 129 AD3d 1177, 1178 [3d Dept 2015]; see Liriano v. Hobart Corp., 92 NY2d 232, 237 [1998]; Voss v. Black & Decker Mfg. Co., 59 NY2d 102, 107 [1983]). By submission of the post-accident Ski Equipment Inspection Report, Defendant has shown “prima facie entitlement to judgment as a matter of law regarding the strict products liability cause of action by demonstrating that the product was not defective” (Mincieli v. Pequa Indus., Inc., 56 AD3d 627, 628 [2d Dept 2008]). Most significantly, this is not contested by Plaintiff, who instead argues that Defendant’s “initial argument…Plaintiffs claim is based solely on Product’s Liability is entirely inaccurate” and points to Plaintiffs Request for Judicial Intervention, which classified the cause of action as “Other Negligence: Premises Liability.” While Plaintiff challenges the “accuracy and validity” of the Ski Equipment Inspection Report, mere speculation is insufficient to defeat a motion for summary judgment (see Flahive v. Union Coll., 99 AD3d 1151, 1153 [3d Dept 2012]). Defendant is entitled to judgment as a matter of law regarding Plaintiffs claim of premises liability. Defendant next argues that Plaintiff assumed the risk of varying skiing terrain conditions. Plaintiff testified at her deposition that she was skiing down the hill and hit a very small bump, about half the size of a watermelon. She further stated, “after I hit the bump I started falling. It kind of, like, interrupted my motion and so I fell backwards to the right of my skis. After I fell I rolled about 3 or 4 times down the mountain and when I was done rolling my skis were, like, jammed into the snow and, so, the way my body was twisted, I wasn’t able to twist myself back up to pop the skis off myself so I had to yell…[for someone else] to come pop my skis off.” “Under settled assumption of risk principles, a person who elects to engage in a sporting or recreational activity,…consents to those commonly appreciated risks which are inherent in and arise out of the nature of the sport generally and flow from such participation. As a result, such participants may be held to have consented to those injury-causing events which are known, apparent or reasonably foreseeable. The duty owed under these circumstances is a duty to exercise care to make the conditions as safe as they appear to be. If the risks of the activity are fully comprehended or perfectly obvious, plaintiff has consented to them and defendant has performed its duty. Participants, of course, are not deemed to have assumed risks which are the result of reckless or intentional conduct, or risks concealed or unreasonably increased, i.e., a result of conditions created by the defendant which are unique and created a dangerous condition over and above the usual dangers that are inherent in the sport” (Youmans v. Maple Ski Ridge, Inc., 53 AD3d 957, 958-59 [3d Dept 2008] [internal quotation marks and citations omitted]; see Finn v. Barbone, 83 AD3d 1365, 1365 [3d Dept 2011]). Defendant’s burden on this motion is to establish that Plaintiff was aware of, and accepted, the inherent risks associated with skiing and that conditions were as safe as they appeared to be; however, it is not necessary that Defendant establish that Plaintiff foresaw the exact manner in which the injury occurred (see Valente v. State, 18 Misc 3d 1135 [A], 2008 NY Slip Op 50321 [U], *3-4 [Ct C1 2008, McCarthy, J.]) As relevant here, the state Legislature has specifically found “that downhill skiing, like many other sports, contains inherent risks including, but not limited to, the risks of personal injury or death or property damage, which may be caused by variations in terrain or weather conditions; surface or subsurface snow, ice, bare spots or areas of thin cover, moguls, ruts, bumps; other persons using the facilities; and rocks, forest growth, debris, branches, trees, roots, stumps or other natural objects or man-made objects that are incidental to the provision or maintenance of a ski facility in New York state” (General Obligations Law §18-101). In support of its Motion, Defendant submits Dispatch Detail Reports (trail checks) for the site of the injury confirming that the trail was checked multiple times on the date of the accident, and deposition testimony showing that primary/secondary conditions report was posted on a bulletin board where the lift tickets are sold and where equipment is rented. Additionally, Defendant points to both Plaintiff and her skiing companion’s deposition testimony that Plaintiff had already skied the trail at issue once before the accident and was thus aware of conditions. Defendant has therefore met its prima facie burden and Plaintiff has failed to raise a question of fact (see Ruepp v. West Experience Inc., 272 AD2d 673, 674 [3d Dept 2000]; see also Schorpp v. Oak Mtn., LLC, 143 AD3d 1136, 1137 [3d Dept 2016]). Defendant is entitled to judgment as a matter of law regarding Plaintiffs claim of negligent issuance of rental ski equipment. Plaintiff contends “a triable question of fact remains as to products provided to the plaintiff and appropriateness of the steps taken to assure the Plaintiff was provided the proper equipment.” It is undisputed that Plaintiff went to the rental shop and inputted information onto a computer screen including her name, address, phone number, date of birth, height and weight range, and her ski skill range. Plaintiff was then provided with a rental agreement that stated: “I understand that the binding system cannot guarantee the user’s safety; in downhill skiing the binding system will not release at all times or under all circumstances where release may prevent injury or death; it is not possible to predict every release at all times or under all circumstances where release may prevent injury or death nor is it possible to predict every situation in which it will release; in snowboarding, cross country skiing, snowboarding, snow shoeing and other sports utilizing equipment with non-release bindings, the binding system will not ordinarily release during use; bindings are not designed to release as a result of forces generated during ordinary operation. I understand that the sports of skiing, snowboarding, cross country skiing, ski boarding, snow shoeing and other sports collectively recreational snow sports involve inherent and other risks of injury and death; I voluntarily agree to expressly assume all risks or injury or death that may result from these recreational snow sports or which relate in any way to the use of this equipment. I agree to release and hold harmless Windham Mountain, its employees, owners, affiliates, agents, officers, directors and the equipment manufacturers and distributors and their successors in interest collectively providers from all liability for injury, death, property loss and damage which results from the equipment user’s participation in the recreational snow sports for which the equipment is provided or which is related in any way to the use of this equipment including all liability which results from the negligence of providers or any other person or cause. I further agree to defend and indemnify providers for any loss or damage including any that results from claims or lawsuits for personal injury, death and property loss and damage related in any way to the use of this equipment.” After completing the Rental Agreement, Plaintiff was provided a pair of boots, skis, and poles. As described above, Plaintiff alleges that her injuries resulted from the failure of the skis to release upon her fall. “To state the problem in its simplest terms, bindings for downhill skis should keep the skis fastened on the skier’s foot when he needs them but release so that ski and skier will separate before excessive force, encountered because of a fall or unexpected terrain, is applied to the skier’s body. Excessive force is force that will fracture the skier’s leg bones. And that is the variable factor in adjusting ski bindings; how much force-measured in foot-pounds to account for the leverage of the ski-will the skier’s bones withstand. Obviously, it differs for skiers of different sizes and skiing styles. All binding manufacturers address this problem in the same way. They use various adjustment tables which state the safe force (as discovered by empirical data from laboratory tests) that individual skiers can tolerate. By extrapolation, these readings are transferred from the adjustment table to the manufacturer’s conversion chart which relates it to the proper setting to be used for the binding” (Opera v. Hyva, Inc., 86 AD2d 373, 375 [4th Dept 1982]). As relevant here, Plaintiff alleged in the Complaint that Defendant was negligent “in failing to properly assign and install the ski equipment on plaintiff.” Plaintiff reiterated this claim in her Bill of Particulars. Defendant asserts that “[t]here is no credible evidence that [Plaintiff] was provided with the wrong equipment or there was an error on the part of a technician. These are not matters of common knowledge so to support such a claim requires an expert in ski operations which plaintiff does not have. The plaintiff further cannot prove proximate cause between any of her allegations and the accident/injury.” Defendant further properly notes that a plaintiffs assumption of the risk “defines a standard of care under which a defendant’s duty is defined and circumscribed because assumption of risk in this form is really a principle of no duty, or no negligence and so deny the existence of any underlying cause of action” (Morgan v. State of New York, 90 NY2d 471, 485 [1997]). “Traditionally, the participant’s conduct was conveniently analyzed in terms of the defensive doctrine of assumption of risk. With the enactment of the comparative negligence statute, however, assumption of risk is no longer an absolute defense. Thus, it has become necessary, and quite proper, when measuring a defendant’s duty to a plaintiff to consider the risks assumed by the plaintiff” (Turcotte v. Fell, 68 NY2d 432, 437-438 [1986]). “[I]n assessing whether a defendant has violated a duty of care within the genre of tort-sports activities and their inherent risks, the applicable standard should include whether the conditions caused by the defendants’ negligence are unique and created a dangerous condition over and above the usual dangers that are inherent in the sport” (Morgan v. State of New York, 90 NY2d at 485 [internal quotation marks and citation omitted]). “The duty owed in these situations is a duty to exercise care to make the conditions as safe as they appear to be” (Grady v. Chenango Val. Cent. School Dist., 190 AD3d 1218, 1220 [3d Dept 2021] [internal quotation marks and citation omitted]). Here, the allegation is that Defendant unreasonably increased the risk of injury inherent to skiing by providing Plaintiff with an improper boot and binding. Defendant presented the deposition testimony of Ted Davis, Director of Mountain Operations and Risk Management for Windham Mountain Resort. Mr. Davis is responsible for “all outside operations pertaining to the mountain, such as snow-making, grooming, chair lifts, ski patrol, train parks, and everything else.” Regarding the Risk Management function, Davis explained that, “Because ski patrol falls under Mountain Operations, there are a lot of things that pertain to risk management, as far as accidents are concerned. So that reports also to me.” During his deposition, Mr. Davis was presented with a copy of Plaintiffs Rental Agreement and Release from Liability. The agreement showed that Plaintiffs “skier type” was between “TYPE 1: CAUTIOUS SKIING AT LOWER VISUAL INDICATORS SETTINGS” and “TYPE 2: MODERATE SKIING AT AVERAGE VISUAL INDICATOR SETTINGS.” Mr. Davis explained there is a difference between the settings based on the experience level of the skier — a beginner skier has settings that release sooner. Notably, all printing on the agreement was skewed upward, thus indicating the selection was Type 2. Mr. Davis testified that the rental system is set up so that after a guest inputs information into the computer, the computer tells the technician what ski length and binding DIN needs to be selected. The binding techs go through a program from the manufacturer certifying them on the proper equipment. The binding DIN is preset and would not be adjusted unless the guest specifically requested it. Mr. Davis further testified that the DIN setting assigned is based on a standard for all bindings worldwide. After the skier receives the equipment, the agreement has information regarding the equipment stamped on it. In this case, the agreement stated, “Skier Type: Type II.” In addition to signing the agreement, Plaintiff initialed these annotations on the agreement. Finally, while Plaintiff was given a “men’s boot” according to her rental agreement, Mr. Davis testified that Defendant only rents one style of boot, a “unisex boot.” Additionally, the record includes a Post-Accident Ski Equipment Inspection Report. This report confirms that Plaintiff was set as a Type 2 skier and shows that Plaintiffs skis indicated a 2.5-9.5 DIN setting. The inspection confirmed that all boot parts were present and working correctly and that the heel and forward pressure settings were correct. Mr. Davis testified that from the time of the accident until this inspection, Defendant’s standard operating procedure is to isolate the equipment for testing and then return it to use after inspection. Thus, the incident equipment was isolated from March 11, 2018 until April 3, 2018. After inspection, it was returned to service until again isolated following a letter from an attorney. Defendant established a prima facie case that it did not breach its duty to provide appropriate rental equipment by showing that its rental shop has a standard operating procedure to provide preset bindings to skiers based upon the information provided by the renter themselves, thus Plaintiff assumed the risk of her injury caused by the bump on the ski trail (see generally Youmans v. Maple Ski Ridge, Inc., 53 AD3d at 959). Defendant uses the information provided by the renter to select the appropriate equipment and binding. The appropriate equipment and binding is determined by using an industry standardized system. The binding technician is specifically certified by the manufacturer. Renters themselves then sign and initial a verification of the information provided. After an accident, Defendant isolates incident equipment until it can be inspected. Upon inspection that verifies the safety and absence of defect, the equipment can be returned to use. Here, Defendant has provided both the rental agreement, signed and initialed by Plaintiff showing she did not select the lowest level binding setting, and the post-accident inspection report that shows there was no flaw in the equipment provided and allowing it to be returned to use for the same type of skier. “With [Defendant] contending that [Plaintiff] was injured as a result of [standard conditions with risks assumed by participating in downhill skiing], it became incumbent upon [Plaintiff] to establish that her injuries were caused by some factor other than the risks she assumed by engaging in this sport. Notwithstanding [P]laintiff’s assertions that her injuries were caused by defective ski equipment, which therefore created an enhanced risk not assumed by voluntary participants in the sport of downhill skiing, [this Court] find[s] no evidence proffered which would so indicate” (Jordan v. Maple Ski Ridge, Inc., 229 AD2d 756, 757 [3d Dept 1996]). “A showing of some negligent act or inaction, referenced to the applicable duty of care owed to [her] by [Defendant], which may be said to constitute a substantial cause of the events which produced the injury is necessary” (Morgan v. State of New York, 90 NY2d at 485) and, except for Plaintiff’s unsupported speculation and conjecture, no such showing has been made here (see Schorpp v. Oak Mtn., LLC, 143 AD3d at 1138). Plaintiff argues that the Motion for Summary Judgment should be denied as premature. Plaintiff notes that CPLR 3212 (f) provides that where “facts essential to justify opposition may exist but cannot then be stated, the court may deny the motion or may order a continuance to permit affidavits to be obtained or disclosure to be had and may make such other order as may be just” and case law has affirmed the denial of summary judgment as premature where plaintiff had not yet had opportunity to depose defendant’s employees who were potential witnesses as to how a defect complained of arose (see Hand v. Stanper Food Corp., 224 AD2d 584 [2d Dept 1996]). Despite Plaintiff’s position, no motion for additional discovery has been made. Further, “post-note of issue discovery is allowed only under very limited circumstances. The note of issue is governed by CPLR 3402 and the certificate of readiness by 22 NYCRR 202.21. By their filing, Plaintiff informed the court that all discovery is either complete or has been waived. When a case is not ready for trial, the plaintiff should not file the note of issue or certificate of readiness. This requirement has been strictly construed by the courts, absent any unusual circumstances” (Alfarone v. Robinson, 2010 NY Slip Op 30297 [U], *7-8 [Sup Ct, Queens County 2010, Kitzes, J]). As no motion has been made for additional discovery and, importantly, no showing of an unusual circumstance is implied from the record, the Motion for Summary Judgment is not premature. Plaintiff’s speculation that a different boot would not have caused the same injury or that Defendant did not follow its standard procedures are pure speculation with no support in the record. Plaintiff’s testimony that the rental shop was busy, and that Defendant did not further explain the significance of Plaintiff’s own representations is self-serving and does not create an issue of fact. Notably, the record includes the rental agreement that states “a complete description of skier type” is available and there is no indication that Plaintiff, after providing the information and twice affirming it, was denied the ability to review this information or questioned her ability to provide the information requested. Plaintiff also fails to provide any reason to believe that Defendant’s standard operating procedures somehow falls short of the applicable standard and thus breached Defendant’s duty of care. Accordingly, it is ORDERED, Defendant’s Motion for Summary Judgment is granted. The Court has uploaded the original Decision/Order to the case record in this matter as maintained on the NYSCEF website whereupon it is to be filed and entered by the Office of the County Clerk. Counsel for the Defendant is not relieved from the applicable provisions of CPLR 2220 and 202.5-b (h) (2) of the Uniform Rules of Supreme and County Courts insofar as it relates to service and notice of entry of the filed document upon all other parties to the action/proceeding, whether accomplished by mailing or electronic means, whichever may be appropriate dependent upon the filing status of the party. SO ORDERED AND ADJUDGED Dated: July 12, 2021
