McCROREY v. David Nugent, Appellant. (1999)

 Plaintiff commenced this action to recover damages for injuries he sustained when he ran into a chain link fence as he fielded a fly ball during softball practice.   David Nugent (defendant), the manager of the team that was practicing, moved for summary judgment dismissing the complaint and cross claims against him.   Supreme Court erred in denying that motion.   The undisputed facts establish that defendant did not, merely by virtue of his position as manager, assume a duty to plaintiff to determine that the field was reasonably safe for softball practice.  “In the absence of duty, there is no breach and without a breach there is no liability” (Pulka v. Edelman, 40 N.Y.2d 781, 782, 390 N.Y.S.2d 393, 358 N.E.2d 1019, rearg. denied 41 N.Y.2d 901, 393 N.Y.S.2d 1028, 362 N.E.2d 640).

Order unanimously reversed on the law with costs, motion granted and complaint and cross claims against defendant David Nugent dismissed.

MEMORANDUM: