SUPREME COURT OF THE STATE OF NEW YORK

Appellate Division, Fourth Judicial Department

855 

CA 12-01981 

PRESENT: SCUDDER, P.J., PERADOTTO, CARNI, VALENTINO, AND WHALEN, JJ. 

 

GAIL VANDERBROOK, PLAINTIFF-RESPONDENT, 

V MEMORANDUM AND ORDER

EMERALD SPRINGS RANCH, EMERALD SPRINGS 

RANCH, LLC, JOYCE DE VALINGER AND THOMAS 

DE VALINGER, DEFENDANTS-APPELLANTS. 

SUGARMAN LAW FIRM, LLP, SYRACUSE (STEPHEN DAVOLI OF COUNSEL), FOR

DEFENDANTS-APPELLANTS. 

PHETERSON & PHETERSON, ROCHESTER (PAUL D. VACCA OF COUNSEL), FOR

PLAINTIFF-RESPONDENT. 

 

Appeal from an order of the Supreme Court, Wayne County (John B.

Nesbitt, A.J.), entered September 7, 2011. The order, among other

things, denied the motion of defendants for summary judgment. 

It is hereby ORDERED that the order so appealed from is

unanimously affirmed without costs.

Memorandum: Plaintiff commenced this action seeking damages for

personal injuries she sustained while riding a horse on a guided trail

ride at defendant Emerald Springs Ranch, LLC (Ranch), which is a

business operated by defendant Joyce De Valinger (hereafter,

defendant). During the ride, the horse brushed up against a tree,

plaintiff was unable to push away from the tree, and the tree caught

plaintiff’s leg allegedly injuring her leg and hip.

Supreme Court properly denied the motion of defendants for

summary judgment dismissing the complaint. Defendants failed to meet

their initial burden of establishing entitlement to judgment as a

matter of law on the issues of the horse’s vicious propensity and

defendants’ knowledge of that propensity (see generally Alvarez v

Prospect Hosp., 68 NY2d 320, 324). It is well settled that “the owner

of a domestic animal who either knows or should have known of that

animal’s vicious propensities will be held liable for the harm the

animal causes as a result of those propensities” (Collier v Zambito, 1

NY3d 444, 446). “[A]n animal that behaves in a manner that would not

necessarily be considered dangerous or ferocious, but nevertheless

reflects a proclivity to act in a way that puts others at risk of

harm, can be found to have vicious propensities—albeit only when such

proclivity results in the injury giving rise to the lawsuit” (id. at

447). In support of their motion, defendants submitted the deposition
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CA 12-01981 

testimony of plaintiff, wherein she testified that defendant and a

guide employed by the Ranch instructed plaintiff to push off of the

trees if the horse walked too closely to the trees on the single-file

woodland trail. Defendants also submitted the deposition testimony of

defendant, in which she admitted that she told her guides to instruct

riders to push off of the trees if the horses rode too closely to

them. Consequently, defendants’ evidence raised a question of fact

whether they knew of the horse’s propensity to walk too closely to the

trees, which was the behavior that allegedly caused plaintiff’s

injury. 

Additionally, defendants failed to establish their entitlement to

summary judgment dismissing the complaint on the ground that plaintiff

executed a release of liability. Even assuming, arguendo, that

defendants conclusively demonstrated that plaintiff executed the

release, we conclude that, under these circumstances, where the riding

lesson was ancillary to the recreational activity of horseback riding,

General Obligations Law § 5-326 renders the release void as against

public policy (see generally Tiede v Frontier Skydivers, Inc., 105

AD3d 1357, 1358-1359). 

Finally, defendants failed to establish as a matter of law that

plaintiff assumed the risk of horseback riding. Horseback riding

“[p]articipants will not be deemed to have assumed unreasonably

increased risks” (Corica v Rocking Horse Ranch, Inc., 84 AD3d 1566,

1567). Here, defendants submitted evidence that raised a question of

fact whether they unreasonably increased the risks of horseback riding

by using a bitless bridle on their horses, which did not provide

plaintiff with the ability to control the horse, and by failing to

give plaintiff, who was a novice rider, adequate instructions on how

to control the horse (see generally id. at 1568). Defendants’ failure

to make the required prima facie showing of entitlement to judgment as

a matter of law mandates the denial of their motion regardless of the

sufficiency of plaintiff’s opposing papers (see generally Alvarez, 68

NY2d at 324; Winegrad v New York Univ. Med. Ctr., 64 NY2d 851, 853).

Entered: September 27, 2013 Frances E. Cafarell

Clerk of the Court