KEICHER v. Scott Mackert, Defendant-Appellant. (2002)

 Plaintiff commenced this action seeking to recover damages for injuries that he sustained while playing the position of goalie during a floor hockey game.   Plaintiff was struck in the facemask by the hockey stick of Scott Mackert (defendant) immediately after plaintiff either caught or juggled a ball shot on goal by defendant.   Supreme Court properly denied the motion of defendant seeking summary judgment dismissing the complaint against him.   A participant in a sport assumes all commonly appreciated risks inherent in that sport but does not assume the risks of reckless or intentional conduct (see, Morgan v. State of New York, 90 N.Y.2d 471, 484-485, 662 N.Y.S.2d 421, 685 N.E.2d 202;  Zielinski v. Farace, 291 A.D.2d 910, 737 N.Y.S.2d 199).   Here, defendant failed to meet his initial burden of establishing his entitlement to judgment as a matter of law (see generally, Zuckerman v. City of New York, 49 N.Y.2d 557, 562, 427 N.Y.S.2d 595, 404 N.E.2d 718).   The deposition testimony of an eyewitness submitted by defendant in support of the motion raises an issue of fact whether defendant's conduct constituted a “flagrant infraction[ ] unrelated to the normal method of playing the game and done without any competitive purpose” (Turcotte v. Fell, 68 N.Y.2d 432, 441, 510 N.Y.S.2d 49, 502 N.E.2d 964) and thus was not a risk assumed by plaintiff.

It is hereby ORDERED that the order so appealed from be and the same hereby is unanimously affirmed with costs.

MEMORANDUM: