Buchanan v. Dombrowski

Appeal from an order of the Supreme Court, Erie County (Gerald J. Whalen, J.), entered September 15, 2010 in a personal injury action. The order, insofar as appealed from, granted plaintiffs motion, upon renewal, for summary judgment dismissing defendants’ assumption of risk affirmative defense.

It is hereby ordered that the order insofar as appealed from is unanimously reversed on the law without costs, the motion upon renewal seeking dismissal of the affirmative defense of assumption of risk is denied and that affirmative defense is reinstated.

Same memorandum as in Buchanan v Dombrowski (83 AD3d 1497 [2011]). Present—Smith, J.P., Peradotto, Lindley and Martoche, JJ.