The following papers numbered 1 to 12 read on this motion for an order pursuant to CPLR §3212 granting summary judgment to the defendant, Club Med Sales, Inc., and Club Med Management Services, Inc., in Action No. 1 and defendant Holiday Villages (Providenciales Turks and Caicos) Ltd., in Action No. 2 and dismissing plaintiff's complaints in their entirety.

PAPERS

NUMBERED

Notice of Motion - Affidavits-Exhibits..................................1 - 4

Affirmation in Opposition.....................................................5-9

Reply Affirmation..................................................................10 - 12

Upon the foregoing papers, it is hereby ordered that the motion is resolved as follows:

However, the court notes that the April 16, 2012 Order merely consolidated the two actions for joint trial, and therefore the within motion for summary judgment shall apply to the action filed under Index No. 27490/2008 and not the action under Index No. 4217/2011. (emphasis added.)

Plaintiff testified for the four or five days prior to the incident he did not see any barracudas. In addition, prior to the subject incident Plaintiff had made numerous trips to the Carribean and was familiar with the tropical waters.

Eileen Kett, Senior Vice President and General Counsel for Club Med, testified at her deposition that a few days prior to the within incident someone else at Club Med was bitten by a barracuda.

For the reasons set forth below, Defendants' motion for summary judgment is denied.

A landowner must be aware of the hazard or have constructive notice of the hazard and of the unreasonable risk it creates to be held liable for damages for failing to warn. (Herman v State, 63 NY2d 822 [1984] Johnson v City of New York, 102 AD3d 746 [2nd Dept [*3]2013] Donnelly v. St. Agnes Cathedral School, 106 AD3d 773 [2nd Dept 2013] Saland v. Village of Southampton, 242 AD2d 568 [2nd Dept 1997].) It is undisputed that Defendants were aware that barracudas were present in the area around the dock and presented a danger for patrons of the resort. According to Exhibit "N" (pages 57-59), a resort guest suffered injuries inflicted by a barracuda approximately one week before.

Defendants argue that plaintiff was knowledgeable of the fact that underwater structures attract sea life, that the pilings of the docks constituted underwater structures and that these waters are notorious for the presence of barracudas. However, Plaintiff said he "wasn't aware that it was living under the dock" but he was "aware it's a big ocean and they're out there. I was also not aware that someone got bit right by the swimming area." Specifically, Defendants cite to Abramowitz v Maghsoudlou, for the proposition that Defendant did not have a duty to warn its customers of driving with different size tires. (Abramowitz v Maghsoudlou, 295 AD2d 548 [2nd Dept 2002].) However, in Abramowitz, the court noted that the Plaintiff was provided with an owner's manual which indicated that the care should not be operated with different sized tires. (Id.) Defendant also cites to Collins v Rockbottom Stores, wherein the court held that Plaintiff "was aware of the allegedly dangerous condition posed by both the sign and the staircase at issue before she fell." (Collins v Rockbottom Stores, 279 AD2d 443 [2nd Dept 2001].) However, in Collins v. Rockbottom Stores, Inc., the plaintiff had been alerted to the danger by a sign. (Id.) In the case at bar, no sign or other warning of that nature informed the patron of the potential risk.

Defendants also cites to Herman, in whichthe court did not hold the State liable for failing to warn swimmers of the existence of shifting sand bars. (Herman v State, 63 NY2d 822 [1984].) Again these facts are distinguishable from the ones in the case at hand, in that the incident took place on private property and the facts demonstrate that defendant knew about the potential danger and the threat it posed hotel guests.

Defendants also rely on the "doctrine of assumption of risk" contending that plaintiff assumed the risks by entering into a potentially injury-causing activity. Cases involving the doctrine of "assumption of risk" usually revolve around sports, or other potentially injury-causing activities. (Totino v. Nassau County Council Boy Scouts of America 212 AD2d 657, [2nd Dep't 1995] Morelli v. Giordano, 206 AD2d 464, [2nd Dep't 1994].) Lying on a private dock of a resort does not constitute an "injury-causing" activity nor can it fall under the sports category. For this reason, the "doctrine of assumption of risk" is not applicable to the case at hand.

Finally, defendants contend that plaintiff's claim is barred by the application of the doctrine of ferae naturae wherein an owner or possessor of land is not required to "anticipate the presence of, or guard an invitee against harm from animals ferae naturae." (Gowen v. Willenborg, 366 S.W.2d 695, [Tx. Ct. Civ. App. 1963].) Defendant sustains his argument with case law from Texas, which is not binding on this court. Furthermore, defendant failed to demonstrate the existence of the ferae naturae doctrine in the state of New York. Accordingly, the court will not extend the ferae naturae doctrine of to the within action. [*4]

Defendants, citing to Darby v Compagnie Nat'l Air France, contend that there "is no duty based on a failure to warn of conditions on public land or in adjacent waters." In Darby, it was decided that an innkeeper did not owe a duty to warn his guests of certain dangers arising on a property over which the hotel exercised no management, supervision or oversight. (Darby v. Compagnie Nat'l Air France, 96 NY2d 343 [2001].) In the case at hand, it is undisputed that the dock belonged to the Defendants and that the Defendants had management and supervision powers over the property while in Darby the defendant, as opposed to the case at hand, did not own, manage or supervise the property in question.

For the reasons set forth above, there are issues of fact with respect to whether Defendants were held to a duty to warn guests of the potential hazards around its dock due to Defendants knowledge of a prior incident and whether Defendants breached this duty.

Accordingly, defendants' motion for summary judgment is denied as there are issues of fact for trial.

Dated:January 2, 2014___________________________

Bernice D. Siegal, J. S. C.