Martin Ozog and Amanda Ozog v. Western New York Motocross Association and Palmyra Racing Association

Summary

The New York Supreme Court, Appellate Division, Fourth Department, affirmed the denial of defendants’ motion for summary judgment in a personal injury action arising from a motocross accident. The court held that plaintiffs raised an issue of fact as to whether an improperly trained or negligent flag person presented a risk outside those inherent in motocross racing, and declined to consider a proximate-cause argument raised for the first time in reply papers.

Holdings

1. Although defendants met their initial burden by establishing that plaintiff assumed the risk of his injury, plaintiffs raised a triable issue of fact sufficient to defeat summary judgment.
2. Defendants' contention that any negligence attributable to them was not a proximate cause of plaintiff's injuries was not properly before the court because it was raised for the first time in defendants' reply papers.

Questions Presented

1. Whether defendants were entitled to summary judgment based on the argument that plaintiff assumed the risk of his injury.
2. Whether plaintiffs raised a triable issue of fact as to whether an improperly trained or negligent flag person presented a risk inherent in motocross racing.
3. Whether defendants' argument that their negligence was not a proximate cause of plaintiff's injuries was properly before the appellate court when first raised in reply papers.

Disposition

affirmed