TORREY STOUGHTENGER PLAINTIFF APPELLANT RESPONDENT v. HANNIBAL CENTRAL SCHOOL DISTRICT AND BOARD OF EDUCATION OF HANNIBAL CENTRAL SCHOOLS DEFENDANTS RESPONDENTS APPELLANTS (2011)

MEMORANDUM AND ORDER

Appeal and cross appeal from an order of the Supreme Court, Oswego County (James W. McCarthy, J.), entered June 9, 2010.   The order denied the parties' respective motions for summary judgment.

It is hereby ORDERED that the order so appealed from is unanimously modified on the law by granting that part of plaintiff's motion to strike the affirmative defense of primary assumption of risk and as modified the order is affirmed without costs.

We agree with plaintiff on appeal that Supreme Court erred in denying that part of the motion to strike the affirmative defense of primary assumption of risk.   We therefore modify the order accordingly.  “The doctrine of primary assumption of ․ risk generally constitutes a complete defense to an action to recover damages for personal injuries ․ and applies to the voluntary participation in sporting activities” (Giugliano v. County of Nassau, 24 AD3d 504, 505;  see generally Morgan v. State of New York, 90 N.Y.2d 471, 483–486, rearg. denied 90 N.Y.2d 936;  Turcotte v. Fell, 68 N.Y.2d 432, 437–440).   Nevertheless, there are important distinctions between voluntary participation in interscholastic sports and recreation activities and compulsory participation in physical education class (see Benitez v. New York City Bd. of Educ., 73 N.Y.2d 650, 658–659;  Passantino v Board of Educ. of City of N.Y., 52 A.D.2d 935, 937 [Cohalan, J., dissenting], revd on dissenting mem 41 N.Y.2d 1022).   Inasmuch as plaintiff was participating in a compulsory physical education class and his participation in the wrestling unit was mandatory, the defense of primary assumption of risk is not applicable.   Thus, we reject defendants' contention on their cross appeal that the court erred in denying their motion for summary judgment dismissing the complaint based on that affirmative defense.

Frances E. Cafarell

Clerk of the Court