MULLER 15 v. SPENCERPORT CENTRAL SCHOOL DISTRICT (2008)

 Plaintiffs commenced this action individually and as the parents of their daughter, a ninth-grade student who is a member of the junior varsity outdoor track and field team at Spencerport High School.   At track practice, their daughter was struck in the head by a discus thrown by her teammate, third-party defendant, while plaintiffs' daughter was waiting for her turn to throw the discus.   Supreme Court properly denied defendant's cross motion seeking summary judgment dismissing the complaint.   We agree with defendant that it met its initial burden by establishing that the risk of being struck by a discus is a “ ‘perfectly obvious' ” inherent risk in the sport (Morgan v. State of New York, 90 N.Y.2d 471, 484, 662 N.Y.S.2d 421, 685 N.E.2d 202), and that plaintiffs' daughter “ ‘assumed the [inherent] risks associated [with] this voluntary extracurricular sport’ ” (D'Angelo v. Board of Educ. of N. Tonawanda City School Dist., 300 A.D.2d 1078, 752 N.Y.S.2d 579;  see Marlowe v. Rush-Henrietta Cent. School Dist., 167 A.D.2d 820, 561 N.Y.S.2d 934, affd. 78 N.Y.2d 1096, 578 N.Y.S.2d 872, 586 N.E.2d 55;  Kreil v. County of Niagara, 8 A.D.3d 1001, 778 N.Y.S.2d 601).   We conclude, however, that plaintiffs raised a triable issue of fact whether defendant's coaching staff “failed to provide proper supervision of the [discus throwing] activities, thereby exposing [plaintiffs' daughter] to unreasonably increased risks of injury” (Sheehan v. Hicksville Union Free School Dist., 229 A.D.2d 1026, 645 N.Y.S.2d 181;  see Benitez v. New York City Bd. of Educ., 73 N.Y.2d 650, 658, 543 N.Y.S.2d 29, 541 N.E.2d 29;  Royal v. City of Syracuse, 309 A.D.2d 1284, 765 N.Y.S.2d 560;  Gilbert v. Lyndonville Cent. School Dist., 286 A.D.2d 896, 730 N.Y.S.2d 638).

 We further conclude that the court properly granted that part of third-party defendant's motion seeking summary judgment dismissing the third-party complaint.   Although it is well established that voluntary participants in sporting or recreational activities are not “deemed to have assumed the risks of reckless or intentional conduct” (Morgan, 90 N.Y.2d at 485, 662 N.Y.S.2d 421, 685 N.E.2d 202;  see Turcotte v. Fell, 68 N.Y.2d 432, 439-440, 510 N.Y.S.2d 49, 502 N.E.2d 964), here there is no evidence in the record before us that third-party defendant's conduct was anything other than an unfortunate accident.   Indeed, we note that defendant admitted in its bill of particulars that “[i]t is not believed that Third-Party [D]efendant's actions were malicious, wanton, or intentional.”   Thus, absent evidence that third-party defendant's conduct in throwing the discus was reckless or intentional, defendant's single cause of action in the third-party complaint, seeking indemnification from third-party defendant for her alleged culpable conduct, is without merit.

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

MEMORANDUM: