Roska v. Town of Cheektowaga

Wisner and Balio, JJ.

(dissenting). We respectfully dissent. The majority erroneously concludes that defendant failed to sustain its initial burden to establish a prima facie defense. Defendant submitted evidence sufficient to establish as a matter of law that plaintiff assumed the risk of her injury. “ ‘[Assumption of risk in this form is really a principle of no duty, or no negligence and so denies the existence of any underlying cause of action’ ” (Morgan v State of New York, 90 NY2d 471, 485, quoting Prosser and Keeton, Torts § 68, at 496-497 [5th ed] [emphasis added]). Because defendant…