MARCHETTI v. EAST ROCHESTER CENTRAL SCHOOL DISTRICT (2006)

 Plaintiff commenced this action seeking damages for personal injuries suffered by her son, Sean, when he allegedly fell off the roof of the East Rochester Middle School gymnasium.   We conclude that Supreme Court properly granted defendant's motion for summary judgment dismissing the complaint.   In support of her contention that the court erred in granting defendant's motion, plaintiff relies exclusively on a theory of negligence raised for the first time in opposition to defendant's motion.   Inasmuch as “[a] plaintiff cannot defeat an otherwise proper motion for summary judgment by asserting a new theory of liability for negligence for the first time in opposition to the motion,” plaintiff's reliance on that theory of negligence is misplaced (Winters v. St. Vincent's Med. Ctr. of Richmond, 273 A.D.2d 465, 465, 711 N.Y.S.2d 892;  see Harrington v. City of New York, 6 A.D.3d 662, 663, 776 N.Y.S.2d 592;  Araujo v. Brooklyn Martial Arts Academy, 304 A.D.2d 779, 780, 758 N.Y.S.2d 401;  Matacale v. County of Steuben, 289 A.D.2d 949, 950, 735 N.Y.S.2d 437;  Yaeger v. UCC Constructors, 281 A.D.2d 990, 991, 721 N.Y.S.2d 894).   Defendant established its entitlement to judgment as a matter of law by establishing that the sole proximate cause of Sean's injuries was Sean's “own willful behavior in engaging in hazardous and illegal conduct, and compensation should not be granted in such circumstances” (Tillmon v. New York City Hous. Auth., 203 A.D.2d 19, 20, 609 N.Y.S.2d 239;  see Boltax v. Joy Day Camp, 67 N.Y.2d 617, 499 N.Y.S.2d 660, 490 N.E.2d 527;  Pytel v. New Jersey Tr. Auth., 267 A.D.2d 155, 700 N.Y.S.2d 19;  Gustin v. Association of Camps Farthest Out, 267 A.D.2d 1001, 1002, 700 N.Y.S.2d 327).

It is hereby ORDERED that the order so appealed from be and the same hereby is unanimously affirmed without costs.

MEMORANDUM: