This is a motion to dismiss (CPLR §3212) by the Defendant, William J. Papp, Jr. The complaint was previously discontinued as to the Co-Defendant Nancy Axelrod-Lamb.

Plaintiff Barbara Ann Stanislav claims that she was injured when she fell off her horse while horseback riding with Mr. Papp and a non-party Christopher DePhillipis.

The largely undisputed facts, as testified to at their respective depositions, are that Plaintiff and Defendant met in January 2005, through Match.com, an on-line internet dating service. Plaintiff and Defendant viewed each other's posted profiles which, at the time, displayed photographs of each of them on horseback. The similarities in their on-line profiles prompted them to contact one another, and they did so via e-mail and by telephone. [*2]

Their first date took place in New York City in late January 2005. Among their topics of discussion was horseback riding. They discussed their respective experience with horses. Plaintiff informed Defendant that she began horseback riding 20 years ago when she lived in Kansas and owned two horses. Defendant's experience was more limited, going back only two years, although he did own a horse.

Ms. Stanislav told Mr. Papp that she had not been riding in a long time and no longer had her "horse legs," but that she was interested in getting back into riding. She stated that she was interested in finding a stable in Westchester County. Papp told Plaintiff that he rode in Westchester County and kept his horse there.

Eventually, they made plans to go out to Westchester and ride. Since Plaintiff's riding gear (boots, chaps, helmet, and saddle) was in storage, Defendant offered to lend her his sister's gear. Ms. Stanislav testified that she told Defendant more than once, that because she had not ridden a horse for quite a while, she would need to ride a safe, slow, and gentle horse. Plaintiff claims that Defendant told her not to worry, that he had a friend with horses they could ride, and that she would be given a horse to match her ability. Ms. Stanislav testified that she felt assured by his words because "[i]n the equestrian world, there is a way equestrians take care of each other" (Stanislav Dep., at 40 - 41).

Ms. Stanislav and Mr. Papp met in northern Westchester County on the afternoon of February 5, 2005, and drove out to a stable on Ms. Axelrod-Lamb's property. There, they met with Mr. DePhillipis who managed Ms. Axelrod-Lamb's stable.

Ms. Stanislav and Mr. Papp agreed to have Mr. DePhillipis join them on their trail-ride. Mr. DePhillipis selected a horse for plaintiff to ride. The horse selected for Ms. Stanislav was an Appaloosa named Teddy and Teddy was smaller than the horses Mr. DePhillipis and Mr. Papp chose to ride. According to Ms. Stanislav, the three horses were then "tacked up"^[FN1] for the ride.

Ms. Stanislav testified that she had difficulty mounting Teddy and that she needed to make adjustments to the equipment. She also testified that she continued to have reservations about the stirrups and the saddle throughout the trail ride, but that she did not express these concerns to defendant or Mr. DePhillipis. Ms. Stanislav acknowledged that the borrowed gear, the helmet, half chaps, and boots, fit well enough and were "satisfactory."

The horses were, alternately, walked, trotted, and cantered during the trail ride, and the three riders, for the most part, stayed in a line with Mr. DePhillipis in the lead, followed by Defendant, and then Plaintiff. Ms. Stanislav testified that, as horses tend to do, Teddy kept trying to keep up with the other, larger horses, even when it meant not obeying her commands to slow or "half halt."

Approximately 40 minutes into the trail ride, they rode into a field, at which point, according to Plaintiff, Defendant and Mr. DePhillipis indicated that they wanted to do some jumps with their horses. Plaintiff did not want to jump with Teddy so she decided to meet them at the end of the planned jumps. Plaintiff claims that it was at that point that Teddy suddenly and unexpectedly, lunged forward, causing her to lose her balance, slide down the side of the horse, and then fall off entirely. It is undisputed that plaintiff was injured during her fall and still [*3]suffers from the debilitating effects of her accident. Ms. Stanislav and Mr. Papp remained friends for about two years, during which time she continued to receive medical treatment for her injuries.

Based on their respective depositions, the only material differences between the parties' versions of the events leading up to her accident were plaintiff's insistence that: (1) she stated and re-stated her concern that she be provided with a gentle horse because she had not ridden in quite a while; (2) Mr. Papp assured her that he would give her an appropriate horse; (3) both Mr. Papp and Mr. DePhillipis knew that she was having difficulty controlling Teddy, but proceeded to ride at a quicker tempo than plaintiff was comfortable with; (4) Mr. Papp and Mr. DePhillipis told her they were going to do jumps with their horses even though she told them that she was not comfortable jumping with Teddy; and (5) Mr. Papp and Mr. DePhillipis's movement towards jumping their horses caused Teddy to try to follow, and plaintiff to fall.

Plaintiff commenced the instant action containing only one cause of action against Mr. Papp. The Complaint alleges that Mr. Papp failed to appreciate plaintiff's level of skill as a horseback rider, failed to provide her with a gentle and obedient horse, and failed to both warn her and to comply with her request to ride in a slow and careful manner.

By this motion Defendant moves for a summary dismissal of the complaint on the ground that he did not owe Plaintiff a duty of care and therefore, there is no legal basis for her to recover. Moreover, Mr. Papp argues that during the short time that they knew each other before the trail ride, Plaintiff held herself out as an expert equestrian, and during the trail ride, demonstrated her equestrian abilities in the manner in which she handled both the horse and the gear. Mr. Papp testified that Plaintiff did not appear to be having any issues with the tempo or the level of difficulty of their trail ride, and he did not recall any discussion about jumping their horses.

The proponent of a motion for summary judgment motion must make a prima facie showing of entitlement to judgment as a matter of law by tendering sufficient evidence to eliminate any material issues of fact from the case (Winegrad v New York Univ. Med. Ctr., 64 NY2d 851, 853 [1985]). Mr. Papp has made this showing, as even "accepting plaintiff's version of the facts as we must on this summary judgment motion" (Rizk v Cohen, 73 NY2d 98, 103 [1989]), he is entitled to a summary dismissal of the complaint as against him.

As with any negligence action, "the threshold issue before the court is whether the defendant owed a legally recognized duty to the plaintiff" (Gilson v Metropolitan Opera, 5 NY3d 574, 576 [2005]). Plaintiff's theory of recovery would require this court to expand the scope of legally recognized duties owed to adults who voluntarily partake in a horseback riding in a social setting. The Court of Appeals addressed the issue of expanding a duty of care in Gilson. The Court stated:

we make this determination by balancing factors, including the reasonable expectations of parties and society generally, the proliferation of claims, the likelihood of unlimited or insurer-like liability, disproportionate risk and reparation allocation, and public policies affecting the expansion or limitation of new channels of liability. We noted our reluctance to extend the duty of care such that a defendant may become liable for failure to control the conduct of others, imposing such duty only where the defendant's relationship with . . . the plaintiff places the defendant in the best position to protect against the risk of harm; and that the specter of limitless [*4]liability is not present

(id. at 576 - 577 [internal quotation marks and citations omitted]).

Furthermore, under the doctrine of assumption of risk, participants in a recreational activity "may be held to have consented, by their participation, to those injury-causing events which are known, apparent or reasonably foreseeable consequences of the participation" (Turcotte v Fell, 68 NY2d 432, 439 [1986]). With particular regard to horseback riding, it is well settled that "an inherent risk in sporting events involving horses is injury due to the sudden and unintended actions of the animals, including those actions which result in the participant being thrown or falling" (Dalton v Adirondack Saddle Tours, Inc., 40 AD3d 1169, 1171 [3rd Dept 2007][internal quotation marks and citations omitted]; see also Harrington v Colvin, 237 AD2d 992 [4th Dept], lv denied 90 NY2d 808 [1997]). The Dalton Court also noted that there are risks associated with certain sporting activities which

are so perfectly obvious that even a relatively inexperienced participant should be charged with knowledge of them, simply because they inhere [in the sporting activity] so far as they are obvious and necessary, just as a fencer accepts the risk of the trust by his antagonist or a spectator at a ball game the chance of contact with the ball [internal quotation marks omitted]

(Dalton, 40 AD3d at 1171; quoting Morgan v State of New York, 90 NY2d 471, 483 [1997]).

In the instant matter, neither Plaintiff's lack of recent riding experience, nor her requests for assistance when she found herself unable to control the horse, created a duty of care on Defendant's part to prevent her from the risks associated with horseback riding.

It is abundantly clear from Plaintiff's own testimony, that she was under no compulsion to go on the trail ride with Defendant. Ms. Stanislav acknowledged that she did not refuse, or express any concerns about Teddy prior to the trail ride, nor did she express a desire to end or withdraw from the trail ride at any time prior to her accident. Plaintiff offers no evidence that Defendant knew that Teddy had dangerous propensities or that Teddy actually had dangerous propensities (see Campbell v City of New York, 31 AD3d 594, 595 [2nd Dept 2006]). The only evidence is that Plaintiff voluntarily mounted Teddy and proceeded with this recreational sporting activity.

The parties, who had only recently met, were on a date. The nature of their relationship did not obligate Defendant to assess and accommodate Plaintiff's level of expertise and experience, any more than it obligated Plaintiff to assess and accommodate Defendant's. Neither the fact that Mr. Papp provided the means for their trail ride, nor the fact that Mr. Papp was aware that Plaintiff had not been horseback riding for a number of years, provides a legal basis for Plaintiff to recover damages from her date.

Furthermore, while not all assumption of risk actions are properly dismissed through summary judgment motions, a perusal of New York tort actions involving horseback riding accidents reveals notable consistency between the departments on this very issue (see Tindall v Ellenberg, 281 AD2d 225 [1st Dept 2001] [assumption of risk doctrine barred recovery where plaintiff fell due to kicking by defendant's horse during a trail ride]; Kinara v Jamaica Bay Riding Academy, Inc., 11 AD3d 588 [2nd Dept 2004] [doctrine barred recovery where the [*5]evidence of a horse kicking during a trail ride was determined to be "inherent, usual and ordinary"]; Rubenstein v Woodstock Riding Club, 208 AD2d 1160 [3rd Dept 1994] [doctrine barred recovery for a child who was found to have assumed the risk of being injured by a horse which is a large, strong animal which can also be unpredictable]; Lewis v Erie County Agric. Socy, 256 AD2d 1114 [4th Dept 1998] [doctrine barred recovery for an equestrian who was kicked by her horse at a horseshow sponsored by defendants]).

Nevertheless, Plaintiff submits the sworn affidavit of Drusilla Malavase as part of her effort to forestall a summary dismissal of her complaint. Ms. Malavase identifies herself as an active horsewoman who, among her many achievements, has apparently authored articles regarding equestrian safety. She states that based upon her knowledge and skill, it is good practice for experienced riders to be placed both in the lead and at the back end of a trail ride, and that the pace should be set at the comfort and ability level of the least capable, or confident, rider. She states that Defendant and Mr DePhillipis erred by failing to address the problems Plaintiff encountered while trying to control Teddy, and asserts that Defendant was negligent by failing to adhere to "good practice while riding in a group." Ms. Malavase concludes that Plaintiff's accident occurred as a result of Defendant's failure to "observe either standard caution or courtesy in the ride."

Ms. Malavase's affidavit is apparently based on the erroneous premise that Plaintiff is without basic equestrian experience, and without sufficient knowledge to know that a horse will follow its basic instinct to run towards the other horses when it perceives itself left behind (Malavase Aff., at 5 - 6). This premise contradicts the Plaintiff's deposition testimony in which she not only explained about a horse's propensity to keep up with other horses, but she frequently peppered her responses to questions by defense counsel with equestrian nomenclature.

Finally, the submission of Ms. Malavase's affidavit does not, and cannot, create a legal duty of care where none exists. While it may have been advisable for Mr. Papp and Ms. Stanislav to make sure that they were both up to their planned trail ride before they started, there was no added legal duty on Defendant's part to ensure Plaintiff's safety. To read a duty of care into a purely social arrangement between adults who decide to go horseback riding would undoubtedly and improperly expand the existing channels of liability and set off a proliferation of claims based solely on social experiences gone awry (see Gilson v Metropolitan Opera, 5 NY3d at 576]).

Accordingly, it is

ORDERED that the motion for summary judgment is granted, and the complaint against defendant William J. Papp, Jr. is dismissed, and the Clerk is directed to enter judgment in favor of defendant with costs and disbursements to defendant as taxed by the Clerk of the Court upon the submission of an appropriate bill of costs; and it is further

ORDERED that the Clerk is directed to enter judgment accordingly.

Dated:

ENTER:

________________

Walter B. Tolub, J.S.C.