sell fj CAM PONTIAC ASSOCIATES LIMITED LIABILITY COMPANY, COP AK LAKE MAA, COP LAKE BOAT and SKI, LLC, RUSSEL FUN and THOMAS C.

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1 sell fj SHORT FORM ORDER Present: SUPREME COURT - STATE OF NEW YORK HON. BRUCE D. ALPERT DAVID SCHUAN, Infant by his Mother and Natural Guardian, BARBAR SCHUAN and BARBAR SCHUAN, Individually, Justice TRIAL/IAS, PART 4 NASSAU COUNTY Plaintiffs Index No /04 -against- Motion Sequence Nos. 1- Motion Date: March 30, 2006 CAM PONTIAC, INC., CAMP PONTIAC L. CAM PONTIAC ASSOCIATES LIMITED LIABILITY COMPANY, COP AK LAKE MAA, COP LAKE BOAT and SKI, LLC, RUSSEL FUN and THOMAS C. GARBARII Defendants. The following papers read on these motions for summary judgment: Notice of Motion Notice of Cross-motion Opposing Submissions Reply Papers Memorandum of Law XXX

2 Upon the foregoing papers, it is ordered that motion-in-chiefby defendants, Camp Pontiac, LLC, Camp Pontiac Associates Limited Liability Company, (together " Camp Pontiac ) and Thomas C. Garbarini, and the cross-motion by defendants, Copake Lake Boat & Ski, LLC, (s/h/a Copake Lake Boat and Ski, LLC (hereafter "CLBS"J) and Russell Funk (s/h/a Russel Funk), each directed toward the summary dismissal of the plaintiffs complaint, are denied for the reasons hereinafter articulated. This personal injury action arises out of a boating accident, which occurred on the morning of July 6, 2003, on Copake Lake located in the Town of Copake in Columbia County in upstate New York. The infant plaintiff, David Schuman, a camper at Camp Pontiac, who was then twelve (12) years of age, was injured when he fell from an inflatable "banana boat" that was being towed by a motorboat operated by defendant Garbarini. Counsel for the plaintiffs states that: "The infant plaintiff... was severely injured when his arm was cut by an uncovered tow rope attaching the motor boat to an inflatable banana boat." (, opposing affirmation of 3/7/06) The plaintiffs' complaint contains two causes of action. The first cause of action asserts a negligence claim on behalf of the infant plaintiff, and the second cause of action asserts a derivative claim on behalf of Barbara Schuman, the infant plaintiffs mother.

3 Defendants, Camp Pontiac and Garbarini, premise their summary judgment application on the assumption of risk doctrine. Their counsel contends: " The risks of this activity were ' fully comprehended' and ' perfectly obvious' to plaintiff who had participated in the event several times that day and on previous occasions. " (~20 supporting affirmation of 1/16/06) Counsel for the plaintiffs argues, on the other hand, that: "(Camp Pontiac) has failed to satisfy their burden of proof as they failed to present admissible evidence to show that (the infant plaintiff) appreciated the risk of striking the extended poly-nylon rope that connected the banana boat to the motor boat. " (~ 19, opposing affirmation of 3/7/06) The Court agrees. Central to the assumption of risk doctrine, as applicable to sports and recreational activities, is whether the consenting participant was aware of and appreciated the nature of the inherent risks of engaging in that particular sport or activity. (see, Morgan v State of New York, 90 NY2d 471, 484; Maddox v City of New York, 66 NY2d 270, 278) Furthermore, awareness of the risk is " ' to be assessed against the background of the skill and experience of the particular plaintiff( Maddox v City of New York, 66 NY2d , supra (citations omitted); Turcotte v Fell, 68 NY2d 432, 440, supra; Benitez v New York City Bd. ofeduc., 73 NY2d 650, , supra)." (Morgan v State of New York supra, at 486)

4 In order to make a prima facie showing, the movants must submit proof that the infant plaintiff was aware of the potential for injury presented by the mechanism which is asserted to have caused the injury. (see, Rosati v Hunt Racing, Inc., 13 AD3d 1129, 1130 (4th Dept.J) In this case, defendants, Camp Pontiac and Garbarini, have not established that the child was aware of the risk of being injured by the tow rope should he sit on the front end of the banana boat, a spot that was not equipped with handles. Notably, the tow rope with which the infant plaintiff ultimately made contact was attached to the front of the banana boat. Although defendant Garbarini, the operator of the towing craft, testified that he did not remember that particular day, he indicated: "there was a general list of rules that (hej would go over before (sic Jevery time that (he) would take a new group of campers out. (Transcript, p. 13) One such rule required the campers "to sit in their seats with the seats on the boat, not in front of the handle or anything like that." (Transcript, p. 14) Significantly, the infant plaintiff testified that he was never advised that riding in front of the handles was prohibited. (Transcript, p. 49). Even if defendant Garbarini could remember reviewing the rules with the campers on the day of the accident, the conflicted testimony on point would merely present credibility issues that are generally beyond the purview of summary judgment practice. (see, S & A Realty Management Corp. v Prestigiacomo, 306 AD2d )

5 Defendants, CLBS and Funk, predicate their cross-motion on the assertion that they did not operate or control the motorboat at the time of the accident. Defendant Funk, one of the two principals ofclbs, avers: "The motorboat that was towing the banana boat when Plaintiff David Schuman allegedly sustained his injuries on July 6, 2003, was, at that time, leased by CLBS to Camp Pontiac. " (~ 5, supporting affidavit) Defendant Funk additionally states: "at the time of the accident, Mr. Garbarini (the operator of the towing craft) was an employee of Camp Pontiac, was under the direct supervision and control of Camp Pontiac, and was compensated by Camp Pontiac for his services in operating the motorboat." (~7, supporting affidavit) With respect to defendant Garbarini' s employment, the lease between Camp Pontiac and CLBS, in relevant part, states: "CLBS must approve all water-ski instructors and boat drivers (the 'Employees ); however, the Employees will be employed by Camp Pontiac and wil be under Camp Pontiac s direct supervision." (CLBS and Mr. Funk' s Exhibit D). The foregoing is prima facie proof that defendant Garbarini was employed by Camp Pontiac on the date of the accident. However, this does not end the inquiry for there is also evidence in the record that the subject defendant had a continuing employment relationship with the cross-movants, as well. In this regard defendant Funk testified: "Mr. Garbarini has worked for (him) since he was 14. He s worked at the marina. He s been around boats. He s operated boats for

6 (him) during his employment with (him)." (Transcript, p. 23) He further testified that on July 6, 2003, defendant Garbarini "was physically at the marina, but he was not employed by the marina on that day." (Transcript, pp. 10, 11-12) Defendant Funk additionally testified that he had provided instructions to Garbarini concerning the operation of the banana boat ride (Transcript, pp ), and had specifically cautioned that if campers were standing, jumping, or horsing around, he was to stop the activity until he regained control. (Transcript, p. 24) Defendant Garbarini similarly testified that Mr. Funk gave him instructions as to: How to drive the boat, what the kids were supposed to be doing when (he) was driving the boat, (his) duties, and what (he) had to tell everybody." (Transcript, p. 12) Based on the foregoing testimony, the Court cannot conclude as a matter of law that Mr. Garbarini' s employment relationship with defendants, CLBS and Funk, was completely severed. A jury could rationally find that defendant Garbarini was a special employee of Camp Pontiac while continuing in the general employ of CLBS. (cf. Thompson v Grumman Aerospace Corporation, 78 NY2d ) In the absence of proof that the general employer has surrendered control completely, it must be presumed that his control continued. Indeed, it has been said that there must be conclusive proof of surrender of control by the general employer. " (52 NY Jur2d, Employment Relations 5; see, Stone v Bigley Bros., Inc., 309 NY 132, 140;

7 Irwin v Klein, 271 NY ; Matthews v Town of Morristown, 286 AD2d 535, 537 (3d Dept.)) Dated: May 31, 2006 ENTERED JUN NASSAU COUNTY! COUNTY CLERK' S OFFICE