Custodi v. Town of Amherst

Martoche, J.P., and Smith, J. (dissenting).

We agree with Supreme Court that the doctrine of primary assumption of risk bars plaintiffs’ recovery. We therefore respectfully dissent and would affirm the order granting the motion of defendants for summary judgment dismissing the complaint against them.

Plaintiff, who testified at her deposition that she was an experienced rollerblader whose skill level was “between intermediate and advanced,” was rollerblading in the street near defendants’ house. An ice cream truck blocked plaintiff’s path and, although plaintiff was aware that the sidewalk was…