Miller v. Ekiert

Order unanimously affirmed with costs. Order unanimously affirmed without costs. Memorandum: Plaintiff commenced this action to recover damages for injuries he sustained as the result of diving into Oneida Lake from the end of a dock on property owned by Antoinette Ekiert (defendant). Supreme Court properly granted the motion of defendant for summary judgment dismissing the complaint against her. Defendant submitted proof establishing that “the sole legal cause of plaintiffs injuries was [plaintiffs] own reckless conduct in attempting that dive” (Olsen v Town of Richfield, 81 NY2d 1024 , 1026; see, Lionarons v General Elec. Co., 215 AD2d 851 , 852-853, affd 86 NY2d 832 ; Butler v Marshall, 243 AD2d 971 , 973), and plaintiff failed to raise a triable issue of fact. (Appeal from Order of Supreme Court, Oswego County, McCarthy, J. — Summary Judgment.) Present — Pigott, Jr., P. J., Green, Kehoe and Lawton, JJ.