GILBERT GILBERT v. LYNDONVILLE CENTRAL SCHOOL DISTRICT (2001)

Supreme Court, Appellate Division, Fourth Department, New York.

Tara GILBERT, A Minor, by Lynne GILBERT, Parent and Natural Guardian, Plaintiff-Respondent, v. LYNDONVILLE CENTRAL SCHOOL DISTRICT, Defendant-Appellant, et al., Defendants.

Decided: September 28, 2001

PRESENT: PINE, J.P., WISNER, HURLBUTT, KEHOE and GORSKI, JJ.

Michael R. Mendola, for defendant-appellant. Stephen F. Pusatier, for plaintiff-respondent.

Supreme Court properly denied the motion of defendant Lyndonville Central School District (Lyndonville) seeking summary judgment dismissing the complaint against it. Although Lyndonville established as a matter of law that plaintiff assumed the risks inherent in the game of volleyball by participating on Lyndonville's varsity volleyball team, we conclude that plaintiff raised an issue of fact whether Lyndonville exposed her to “unassumed, concealed or unreasonably increased risks” by directing or allowing her to warm up in a hazardous location (Weller v. Colleges of the Senecas, 217 A.D.2d 280, 283, 635 N.Y.S.2d 990; 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).

Order unanimously affirmed without costs.

MEMORANDUM:

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