MERINO ENCARNACION v. BOARD OF EDUCATION OF CITY OF NEW YORK (2009)

Order, Supreme Court, Bronx County (Norma Ruiz, J.), entered April 28, 2008, which, in an action for personal injuries sustained when the infant plaintiff was hit in the eye with a tossed bat during a softball game at defendants' summer camp, denied defendants' motion for summary judgment dismissing the complaint on the ground of assumption of risk, unanimously affirmed, without costs.

An issue of fact exists as to whether plaintiff assumed the risk of playing catcher without any catcher protective gear.   Such issue is raised by evidence that plaintiff was nine years old at the time of the accident and had never played the position of catcher before, and that camp counselors organized and supervised the game, instructed plaintiff to play catcher, did not instruct game participants on the risks of playing softball without appropriate protective gear, and were in charge of supplying protective gear but did not do so (see e.g. Moschella v. Archdiocese of N.Y., 48 A.D.2d 856, 369 N.Y.S.2d 10 [1975];  Muniz v. Warwick School Dist., 293 A.D.2d 724, 743 N.Y.S.2d 113 [2002];  Stryker v. Jericho Union Free School Dist., 244 A.D.2d 330, 663 N.Y.S.2d 868 [1997];  see generally Benitez v. New York City Bd. of Educ., 73 N.Y.2d 650, 657-659, 543 N.Y.S.2d 29, 541 N.E.2d 29 [1989] ).