McKenney v. Dominick

— Order unanimously modified on the law and as modified affirmed with costs to plaintiffs in accordance with the following Memorandum: Supreme Court erred in concluding that plaintiffs’ cause of action is barred by the doctrine of assumption of risk. With the enactment of the comparative negligence statute, assumption of risk is no longer an absolute defense but a measure of defendant’s duty of care (see, CPLR 1411; Benitez v New York City Bd. of Educ., 73 NY2d 650, 657; Turcotte v Fell, 68 NY2d 432, 439). ”[T]he assumption of risk to be implied from participation in a sport with awareness of…