FU ZONE AMUSEMENTS, INC., SHORT FORM ORDER SUPREME COURT - STATE OF NEW YORK. HON. GEOFFREY J. O' CONNELL Justice TRIAL/IAS, PART 6 NASSAU COUNTY

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1 SHORT FORM ORDER Present: SUPREME COURT - STATE OF NEW YORK HON. GEOFFREY J. O' CONNELL Justice FRNK RESSLER, an infant, by his parents and natural guardians, GARY A. RESSLER and GAIL S. RESSLER, and GARY A. RESSLER Individually, and GAIL S. RESSLER Individually, TRIAL/IAS, PART 6 NASSAU COUNTY against Plaintiff(s), INDEX No. 7340/02 MOTION DATE: 8/31/04 AMUSEMENT ENTERPRISES, INC. d//a FUN ZONE and PATRICIA A. JENKINS, MOTION SEQ. No. 2- MOD Defendant( s). FU ZONE AMUSEMENTS, INC., Third-Pary Plaintiff(s), -against- PATRICIA A. JENKINS, Third-Party Defendant(s). The following papers read on this motion: Notice of Motion! Affrmation! Affidavits/ Exhibits Notice of Cross Motion!Affirmation/xhibits Notice of Cross Motion! Affrmation! Affidavit/xhibits Notice of Cross Motion! Affirmation! Affidavit/xhibits

2 Defendants AMUSEMENT ENTERPRISES and PATRICIA JENKINS seek Orders granting them summary judgment pursuant to CPLR 3212, dismissing all claims against them. Plaintiffs oppose the applications and seek summar judgment against the defendants. This action arses out of an incident which occurred on September 18, 2000, On that date infant plaintiff, FRNK RESSLER, then 10 years old, and in the Fifth Grade, attended a Bowling pary given by defendant JENKINS at the FUN ZONE, a bowling alley owned by defendant AMUSEMENT ENTERPRISES, hereinafter referred together as AMUSEMENT ENTERPRISES. In the Amended Verified Complaint plaintiffs allege four causes of action. They allege that the defendant AMUSEMENT ENTERPRISES operated, managed, supervised and maintained the bowling game and permitted patrons, including children to operate it knowing or having constrctive knowledge that the game was unsafe, They allege that AMUSEMENT ENTERPRISES were negligent in their ownership of the game and negligent in allowing or permitting the dangerous condition of the game to exist, in failing to repair or correct the unsafe condition and that both AMUSEMENT ENTERPRISES and JENKINS were negligent in failng to ensure the child' s safety in playing the game. In the second cause of action plaintiff alleges the defendants are liable under the theory of res ipsa loquitur as the accident would not have occurred but for negligence of the defendants. In the third and fourth causes of action plaintiff s parents seek compensation for loss of services and perhaps further loss of moneys which may be necessar to care for plaintiff' s injuries. The plaintiff apparently broke his pinky finger on his right hand at the ball return machine on a Bowlingo" machine. The Bowlingo machine permits a player to have two rolls of a palm-sized bowling ball down the lane to strike down the pins. After the two rolls, the game is over. Plaintiff FRANK RESSLER testified at his deposition that JENKINS had told him, along with other children attending the party to wait in a certain spot near the exit while she went to gather other children. Plaintiff testified that he left that area to play one last game of Bowlingo. RESSLER testified that he reached to retreve a ball from the tray, when a ball entering up to the tray came out of the machine, very quickly, pinching his pinky finger between two bowling balls. He testified that he did not have time to remove his hand from the ball he was picking up. (Exh. F, pp, 31-33) Defendant PATRICIA JENKINS testified that the pary at the facilty was ending and she was gathering the children at the entrance. She testified that she told plaintiff, along with her son and a few others

3 to stay at that location and not move until she could gather the rest of the children, JENKINS testified that she was gone for approximately five minutes and when she returned she leared of the accident. Glen Tause, an officer and manager of AMUSEMENT ENTERPRISES testified at his deposition as did Brian Ritter, the manager on duty at the FUN ZONE on the date of incident. Both individuals testified that there were waring signs posted on the premises at the Bowling machines which read "Bowlingo Safety - Please Read". The postings further advised not to touch ball until it stops in ball tray, and not to put hands on the ball return track. Mr. Tause testified that to his knowledge the four Bowlingo machines were working on the date of the accident. He testified that after each use on a turn the ball, which is several pounds, is returned on a zigzag track and through a bumper leading up to the tray, and that they are generally traveling very slowly when they reach up to the tray. He testified that the tray could hold up to eight balls. He testified that there was no safety mechanisms on the tray to prevent the type of injury which occurred or to prevent the balls from hitting into each other. (Exh. L, pp ) He testified that there were no records reflecting general maintenance or repairs to the Bowlingo machine, but there would be a record of a major repair. He testified that all of the repairs to these machines were made by the defendant's employees. (Exh. L, pp ). Mr. Tause also testified that the office had no records of injuries to patrons. (Exh L, p. 27) Neither of the supervisors testified that they or any of their employees personally inspected the working condition of the Bowlingo machines on the date of incident, prior to or after the accident. Mr. Tause further testified that there was no routine for inspecting the return mechanisms, he refers to as the zig-zag, except as general observations of all the games operating during the course of a day. (Exh L, pp ) He again testified that there were no records of inspections. Mr. Tause testified that the Bowlingo game and zig~ zag are the original mechanisms which were installed approximately 8~9 years ago. (Exh. L, pp. 38~39). Plaintiffs contend that AMUSEMENT ENTERPRISES was negligent in that the machine was dangerous. In addition they contend that both defendants were negligent in failng to properly supervise the children which resulted in the child' s injuries. That portion of the motions of both defendants which seek to dismiss the Second, Third and Fourth causes of action, are Granted. In the opposition to both applications, the plaintiffs have failed to set forth any

4 evidence to support a claim of res ipsa loquitur. In addition, the plaintiffs have failed to set forth any proof of damages necessar to support the third or fourth causes of action. Defendant PATRICIA JENKINS seeks a dismissal of the remaining cause of action against her, the first, which alleges general negligence. JENKINS contends that there is no evidence that she was negligent in her supervision of the plaintiff which resulted in his injuries. Counsel for plaintiffs opposes summary judgment contending that there is a question of fact whether JENKINS is liable. He argues that the defendant is liable for her leaving the plaintiff and others unsupervised for the time she went to gather the other children. He argues that there is a question of fact whether defendant negligently supervised plaintiff in allowing him to be left alone. Counsel argues that the accident took place due to inadequate supervision of the defendant. Mary Anne ZZ v. Blasen, 284 AD2d 773 (3rd Dept. 2001). The failure to protect a child entrusted to one s care could constitute a breach of a duty of care. The plaintiff must demonstrate that the defendant had constructive knowledge of a potential problem due to specific circumstances. Mary Anne ZZ v, Blazen, supra; Oakley v, Hughes, 8 AD3d 354 (2 Dept. 2004). Counsel for plaintiffs argues that in this case there is evidence that the defendant permtted negligent supervision of this young plaintiff at the FUN ZONE facility. Plaintiff's counsel alleges that JENKINS can be charged with constructive knowledge of unsafe equipment, gave the children tokens to play the games and left them alone, and that the accident was foreseeable. He argues that under the factual circumstances a jury could find she breached the duty of a party host by not constantly supervising the children. Plaintiff has demonstrated no facts to support a claim that JENKINS was negligent in permitting plaintiff to be alone or unsupervised. Plaintiff conceded that immediately prior to inci4ent he and several others were told to stay right where they were, and that despite that directive from JENKINS, he admittedly disobeyed and went to playa game of Bowlingo before leaving the facility. JENKINS, as well as plaintiff parents all testified that in the past they had entrusted their son to JENKINS care on several occasions without any problems. Under the circumstances presented in this action, the Court finds that the plaintiffs have not demonstrated a triable issue offact with respect to JENKINS' s liabilty. Oakley v. Hughes, supra; Goldstein

5 v. Welter, 303 AD2d 551 (2 Dept. 2003); Lazar v. TJX Companies, Inc., 1 AD3d 319 (2 Dept. 2003). Where a person undertakes to care for an infant, that person is obliged to use "reasonable" care to protect the child over whom she has assumed temporary custody or control. That person may be held liable for foreseeable injuries sustained by the child which were caused by her negligence in failing to use reasonable care. Adolf E. v. Lori M., 166 AD. 2d 906 (4th Dept. 1990); Appell v. Mande, 269 AD2d 514 (2nd Dept. 2002); Pitkewicz v. Kane, 227 AD2d 113 (lst Dept. 1996). Based on the facts presented the Court fines that there is no question of whether danger of injury to plaintiff was foreseeable to JENKINS, There is no evidence that JENKIS had actual or constructive knowledge that would or should have made her suspect that leaving the plaintiff alone with the other children at a specific location in the FUN ZONE for five minutes was potentially dangerous, There is no evidence that this defendant ever had a problem with the infant plaintiff in the past or had reason to believe he would follow her instructions to stay put. Based on the proof presented, the motion of JENKINS for summar judgment dismissing all claims in the Complaint asserted against her is Granted. Further, there being no opposition and good cause having been demonstrated, that portion of her motion seeking to have the claims of AMUSEMENT ENTERPRISES asserted against her is also Granted. AMUSEMENT ENTERPRISES also seeks an Order dismissing the first cause of action as alleged against it. AMUSEMENT ENTERPRISES contends that there is no evidence that it was negligent in creating or causing a dangerous condition in permitting the Bowlingo game to be used by the public, including children. In support of its application AMUSEMENT ENTERPRISES relies upon the deposition testimony of its managers contending that the game was working in its usual manner and not malfunctioning at the time of the incident. The defendant further provides an affidavit of an engineer who states that based on his inspection of the machine in question and repair and maintenance records, the machine was working properly and suitable for their intended use. He states that the balls are visible for 4.5 seconds before they enter the tray and do not travel at an excessive speed. (Motion, Exh M)

6 The Court notes that the engineer does not specifically identify the records he reviewed, paricularly in light of the defendant' s sworn testimony that there were no general maintenance records. Further, he does not state what, if any, standards, guidelines, or regulations, he relies upon to opine that the mechanism was safe, working properly and that the speed of the balls were not excessive. In this instance plaintiffs do not allege a products liabilty claim. They contend simply that the defendant AMUSEMENT ENTERPRISES created a defective or dangerous condition, or knew of the existence of such a condition and permitted it to exist. Defendants argue it was not dangerous and that plaintiff was or should have been aware of how the machine worked and risks of returning balls to the tray. The Court finds there is a question of fact whether the type of injury which occurred was readily foreseeable by a school-age participant and inherent in the game. As a general rule participants properly may be held to have consented, by their paricipation, to those injury~causing events which are known, are apparent or reasonably foreseeable consequences of the participation. It is not necessary for the application of assumption of risk that the injured plaintiff have foreseen the exact manner in which his or her injury occurred, so long as he or she is aware of the potential for injury of the mechanism from which the injury results. In this instance, however, the Court finds that there is a trable issue of fact whether this type of injury was foreseeable as a result of the returning balls. The photo of the return rack for the game shows small balls being returned into a large tray which permtted balls to rest against several others, not in single fie, and which had no bumpers. The testimony of the parties explained that the balls used by players of at least two games were retured into this tray, The Court finds that there is a triable issue of fact with respect to whether a ten year old should have recognized that he could be injured while reaching to retrieve a ball for the game. While there were apparently warings posted not to leave one s hand in the tray, there was apparently no waring that the tray was used for balls of more than one player. Further, due to the nature of the injury, a fracture to plaintiff's figure, there is a triable issue of fact whether the bowling balls were traveling at an unsafe or excessive speed. Finally, there is a question of whether, due to the mechanisms of the game itself, children should have been permitted to use the game without supervision. The Court finds that there is a question whether the Bowlingo game was dangerous for use by the plaintiff, and whether AMUSEMENT ENTERPRISES created a dangerous

7 condition in permitting its unsupervised use by children. Miehl v. Blue Ridge Homeowner s Ass ' 6 AD3d 76 (2 Dept 2004); Wilson v. Leisure Time Recreation, Inc. 192 Misc2d 553 (2002). Summar judgment should be granted where a plaintiff engages in conduct where the risks of injury are known, apparent or reasonably foreseeable consequences of the paricipation, Esser v. Sf, Dominic High School 238 AD2d 542 (2nd Dept. 1997); Braun v. Davos Resort, Inc. 241 AD2d 533 (2nd Dept. 1997). There is no duty to warn against a condition which is readily observable by reasonable use of the senses. Pepicv. Joco Realty, Inc., 216 AD2d 95 (1st Dept. 1995); Olsen v. State of New York 25 NY2d 665 (1969), The defendant does have a duty, however, to protect a plaintiff from an unassumed, concealed or unreasonably increased risk. Benitez v, New York City Bd. OfEduc. 73 NY2d 650 (1989). If the risks of the activity are fully comprehended or fully obvious, plaintiff has consented to them, and defendant has performed its duty, but a pary wil not be deemed to have assumed the risks of reckless or intentional conduct or concealed or unreasonably increased risks. Benitez v. New York City Board of Educ., 73 NY2d 650 (1989). Thus, the Court must determine if a defendant' s negligence is unique and created a dangerous condition over and above the usual dangers inherent in the sport, Morgan v. State; Beck v. Scimeca; Siegel v. City of New York; Chimerine v. World Champion John Chung Tae Kwon Do Instit" 90 NY2d 471 (1997); Boltax v. Joy Day Camp, 67 NY2d 617 (1986); Maddox v. City of New York 66 NY2d 270 (1985); Rubenstein Woodstock Riding Club, 208 AD2d 1160 (3rd Dept. 1994). Based on the proof presented, the Court finds that there is a trable issue of fact which precludes granting summary judgment to AMUSEMENT ENTERPRISES on the first cause of action. The risk of being injured by a returning ball in the subject mechanism may be found not to be a risk inherent to the sport, or perceivable by children permitted to use the game unsupervised. Siegel v. City of New York, 90 NY2d 471 (1977), A trier of fact could find that the defendants created this hazardous condition which was above and beyond those which should be recognized by school-age children, Based upon the proof presented in this case, the Court finds that there is a trable issue of fact which precludes summar judgment in this issue. The plaintiffs do not allege that the Bowlingo machine was not functioning properly, they contend that it was unsafe in its condition for use by children of plaintiff's age without supervision.

8 ' ) /;, Ressler v. Amusement Entel1rises, Inc.. et al. Based on the proof and arguments presented, AMUSEMENT ENTERPRISES' s motion for summar judgment dismissing the first cause of action in the Complaint as against it, is Denied. As to the two motions made by plaintiffs seeking summar judgment, the first, filed with the Court on July 28, 2004 and the second, seeking identical relief, fied with the Court on August 31, Both applications are Denied as untimely. This matter was certified for tral on Februar , and the Note of Issue was fied on April 29, On the Certification Order issued by this Court, and acknowledged by counsel for the plaintiffresslers, it was directed that all motions for summary judgment were to be made within 60 days of the filing of the Note oflssue. Both of these motions are clearly untimely, As counsel for the RESSLERS neither sought nor obtained permission of the Court to make this application, more than 30 days after such motions were due, it is appropriately Denied, CPLR ~ 3212(a); Bril v, City of New York, 2004 Y. Lexis 1526 (Ct of Appeals, June 10, 2004). In addition, the motions are properly denied as procedurally defective in that the first was fied after its stated return date, and the second was fied on the return date the other motions. Finally, based on the foregoing discussion of law and facts, they are Denied as without merit. It is, SO ORDERED, Dated:. O'CONNELL, J. ;JJt