Julyan v. Chentfant , 649 N.Y.S.2d 867 ( 1996 )

Lawton and Wesley, JJ. (dissenting).

We respectfully dissent. Unlike the majority, we conclude that this is a case where primary assumption of risk is established as a matter of law (see, Turcotte v Fell, 68 NY2d 432). Defendants established that plaintiffs’ son was aware of the presence of the horseshoe pits, that he voluntarily chose to participate in a baseball game near the pits, and that he ran to catch a fly ball without regard to the pits and fell into one of them, sustaining injuries. Given that proof, plaintiffs’ son assumed the risk of injury inherent in his activity (see, Ferraro v Town of Huntington, 202 AD2d 468; Pascucci v Town of Oyster Bay, 186 AD2d 725; see also, Brown v City of Peekskill, 212 AD2d 658). Our decision in Weller v Colleges of the Senecas (217 AD2d 280) does not compel a different result. Unlike the present case, the accident-causing instrument in that case was not known to the plaintiff and there was a question of fact whether it was obvious. (Appeals from Order of Supreme Court, Erie County, Notaro, J.—Summary Judgment.) Present—Green, J. P., Lawton, Wesley, Callahan and Boehm, JJ.