Majority
p. 729Gail W. Resnick et al., Appellants, v H. Joel Gribetz, Respondent. Decided October 22, 1985
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APPEARANCES OF COUNSEL
Steven Di Joseph for appellants.
Patricia DAlivia for respondent.
OPINION OF THE COURT
On review of submissions pursuant to section 500.4 of the Rules of the Court of Appeals (22 NYCRR 500.4), order reversed, with costs, and a new trial granted. There is no evidence in this record to support a finding of express, as opposed to implied, assumption of risk (compare, Arbegast v Board of Educ., 65 NY2d 161 ). The trial court erred in charging the jury, over plaintiff’s objection, that a finding of assumption of risk would bar recovery.
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Concur: Chief Judge Wachtler and Judges Jasen, Meyer, Simons, Kaye and Titone. Taking no part: Judge Alexander.