DEMELIO v. PLAYMAKERS INC LLC XYX 23 99 800 (2008)

On September 23, 1999, his 14th birthday, plaintiff John Demelio allegedly was injured at a recreational facility operated by defendant Brooklyn Indoor Sports Center Inc. d/b/a John Franco's Indoor Sports, located at 800 3rd Avenue in Brooklyn.   According to his Verified Bill of Particulars, he “sustained a detached retina after being struck in the eye by a batted baseball which ricocheted off [a] pole” that formed part of a “batting cage” at the facility.  (See Verified Bill of Particulars, ¶ 4.) With this motion, Defendant seeks summary judgment of dismissal pursuant to CPLR 3212.

Plaintiff alleges specifically that Defendant was negligent “in unreasonably creating an enhanced risk to batters by failing to properly and adequately pad the metal pole of the batting cage ․;  in failing to hang netting between the batter and the pole a sufficient distance from the pole to prevent a struck ball from ricocheting off the pole and back to the batter;  in failing to warn the batter of the risk of ricochet posed by the pole ․;  in failing to inform the batter and or (sic ) providing the batter with goggles or protective eye wear or head gear for use while batting;  in maintaining the metal poles in close proximity to the batter without providing any means to protect the batter from a ricocheting struck ball.”  (Verified Bill of Particulars, ¶ 3.)

Defendant's motion is based upon the doctrine of primary assumption of risk.   Specifically, Defendant contends:  “By Using A Baseball Batting Cage Facility, The Plaintiff Assumed The Risks Inherent In The Activity.”  (Affirmation, ¶ ¶ 10-34.)   The motion is based entirely on Plaintiff's testimony at an examination before trial, and photographs of the allegedly suspect batting cage that he identified at the examination.   Defendant purports to provide the testimony of a witness on its behalf (see id. ¶ 9), but no transcript is attached.   In any event, Defendant cites to no testimony from the transcript, which Plaintiff does attach to his opposition.

 “The doctrine of [primary] assumption of risk is a form of measurement of a defendant's duty to a voluntary participant in a sporting [or recreational] activity.”  (See Manoly v. City of New York, 29 A.D.3d 649, 649, 816 N.Y.S.2d 499 [2d Dept.2006];  see also Benitez v. New York City Bd. of Educ., 73 N.Y.2d 650, 657, 543 N.Y.S.2d 29, 541 N.E.2d 29 [1989].)  “[T]he assumption doctrine applies to any facet of the activity inherent in it and to any open and obvious condition of the place where it is carried on.”   (Maddox v. City of New York, 66 N.Y.2d 270, 277-78, 496 N.Y.S.2d 726, 487 N.E.2d 553 [1985] [quoting Diderou v. Pinecrest Dunes, Inc., 34 A.D.2d 672, 673, 310 N.Y.S.2d 572 (2d Dept.1970) ].)  “Defendant's duty ․ is a duty to exercise care to make the conditions as safe as they appear to be.”   (Turcotte v. Fell, 68 N.Y.2d 432, 439, 510 N.Y.S.2d 49, 502 N.E.2d 964 [1986].)

 “[T]he doctrine requires not only knowledge of the injury-causing defect but also appreciation of the resultant risk.”  (Maddox v. City of New York, 66 N.Y.2d at 278, 496 N.Y.S.2d 726, 487 N.E.2d 553.)   “[A]wareness of risk is ․ to be assessed against the background of the skill and experience of the particular plaintiff.”  (Id.;  see also Guzman v. Iceland, 18 A.D.3d 704, 705, 795 N.Y.S.2d 745 [2d Dept.2005].)   “It is not necessary to the application of assumption of risk that the injured plaintiff have foreseen the exact manner in which his or her injury occurred, so long as he or she is aware of the potential for injury of the mechanism from which the injury results.”  (Maddox v. City of New York, 66 N.Y.2d at 278, 496 N.Y.S.2d 726, 487 N.E.2d 553;  see also Rivera v. Glen Oaks Village Owners, Inc., 41 A.D.3d 817, 820, 839 N.Y.S.2d 183 [2d Dept.2007].)

 An alternate formulation of the doctrine of primary assumption of risk that appears in some opinions is that “[a] plaintiff who voluntarily participates in a sport or recreational activity is deemed to consent to the apparent or reasonably foreseeable consequences of that activity.”  (See Yisrael v. City of New York, 38 A.D.3d 647, 648, 832 N.Y.S.2d 598 [2d Dept.2007];  see also Calouri v. County of Suffolk, 43 A.D.3d 456, 457, 841 N.Y.S.2d 598 [2d Dept.2007].)   The formulation appears to have its genesis in Turcotte v. Fell, 68 N.Y.2d 432, 510 N.Y.S.2d 49, 502 N.E.2d 964;  see also Mauner v. Feinstein, 213 A.D.2d 383, 383, 623 N.Y.S.2d 326 [2d Dept.1995], and there is no indication in any of the authorities that the formulation differs in substance from the “inherency” and “open and obvious” standards.   That which is “open and obvious” is “apparent,” and the risks that “inhere” in a sport or recreational activity are “reasonably foreseeable consequences.”

 Because, however, “inherency is the sine qua non” of primary assumption of risk (see Morgan v. State of New York, 90 N.Y.2d 471, 484, 662 N.Y.S.2d 421, 685 N.E.2d 202 [1997] ), “the applicable standard should include whether the conditions caused by the defendants' negligence are unique and created a dangerous condition over and above the usual dangers that are inherent in the sport” (id. [quoting Owen v. R.J.S. Safety Equip., 79 N.Y.2d 967, 970, 582 N.Y.S.2d 998, 591 N.E.2d 1184 (1992) ].)   The language used to define the limited terrain of liability has varied, and includes “unreasonably increased risk” and “additional or heightened risk” (see id. at 485, 486, 662 N.Y.S.2d 421, 685 N.E.2d 202);  “unreasonably heightened risk” and “ enhanced risk factors” (see Benitez v. New York City Bd. of Educ., 73 N.Y.2d at 659, 543 N.Y.S.2d 29, 541 N.E.2d 29);  “unique or unduly enhanced risk” (see Roberts v. Boys and Girls Republic, Inc., 51 A.D.3d 246, 249, 850 N.Y.S.2d 38, 41 [1st Dept.2008] );  and “unreasonably enhanced risk not inherent in the sport” (see Lamey v. Foley, 188 A.D.2d 157, 165, 594 N.Y.S.2d 490 [4th Dept.1993].)

 “[A]lthough the assumption of risk to be implied from participation in a sport with awareness of the risk is generally a question of fact for a jury ․, dismissal of a complaint as a matter of law is warranted when on the evidentiary materials before the court no fact issue remains for decision by the trier of fact.”  (Maddox v. City of New York, 66 N.Y.2d at 279, 496 N.Y.S.2d 726, 487 N.E.2d 553.)   And so, a defendant may establish prima facie its entitlement to judgment as a matter of law “by showing that the doctrine of primary assumption of risk applie[s].”  (See Yisrael v. City of New York, 38 A.D.3d at 648, 832 N.Y.S.2d 598;  see also Ribaudo v. La Salle Inst., 45 A.D.3d 556, 557, 846 N.Y.S.2d 209 [2d Dept.2007].)   The defendant must show, at the least, that the risk of the injury that in fact occurred was “inherent” in the activity in which the plaintiff was engaged, or that the injury was caused by an “open and obvious” condition of the place where it occurred.  (See id.;   see also DiPilato v. Biaseti, 6 A.D.3d 648, 650, 776 N.Y.S.2d 581 [2d Dept.2004];  Loewenthal v. Catskill Funland, Inc., 237 A.D.2d 262, 263, 654 N.Y.S.2d 169 [2d Dept.1997].)

 “[T]he risks of ․ being struck by a ball or bat during a baseball game ․ are risks which various participants are legally deemed to have accepted personal responsibility for because they commonly inhere in the nature of the activity.”  (Morgan v. State of New York, 90 N.Y.2d at 484, 662 N.Y.S.2d 421, 685 N.E.2d 202;  see also Roberts v. Boys and Girls Republic, Inc., 51 A.D.3d 246, 248, 850 N.Y.S.2d 38, 39-40 [1st Dept.2008];  Muniz v. Warwick Sch. Dist., 293 A.D.2d 724, 724, 743 N.Y.S.2d 113 [2d Dept.2002].)  “The risks of a [baseball] game include the risks involved in the construction of the field.”  (Maddox v. City of New York, 66 N.Y.2d at 277, 496 N.Y.S.2d 726, 487 N.E.2d 553.)

Where a player or bystander is struck by a ball or bat at a baseball game, a defendant may make its prima facie showing upon those facts, and, unless the plaintiff can raise a triable issue with competent evidence that the defendant “unreasonably increased the inherent risk ․ associated with the game of baseball,” the defendant will be entitled to summary judgment dismissal of the complaint.  (See Pira v. Sterling Equities, Inc., 16 A.D.3d 396, 397, 790 N.Y.S.2d 551 [2d Dept.2005];  see also LaRocca v. Pleasant Valley Little League, 15 A.D.3d 628, 628, 791 N.Y.S.2d 578 [2d Dept.2005];  Koenig v. Town of Huntington, 10 A.D.3d 632, 633, 782 N.Y.S.2d 92 [2d Dept. 2004].)   But even a plaintiff who has been struck by an errant ball or bat may defeat summary judgment with an appropriate showing.  (See Muniz v. Warwick Sch. Dist., 293 A.D.2d at 724, 743 N.Y.S.2d 113;  Parisi v. Harpursville Cent. Sch. Dist., 160 A.D.2d 1079, 1080, 553 N.Y.S.2d 566 [3d Dept.1990].)

Similarly, a defendant may make a prima facie showing with evidence that, during play of a baseball game, the plaintiff collided with a fence or pole in the outfield, an “open and obvious” condition of the field, and, if the plaintiff fails to raise a triable issue of fact as to whether the fence or pole “unreasonably increased the risks inherent in the game,” the defendant will be entitled to dismissal.  (See Schoppman v. Plainedge Free Sch. Dist., 297 A.D.2d 338, 338, 746 N.Y.S.2d 325 [2d Dept.2002];  Bailey v. Town of Oyster Bay, 227 A.D.2d 427, 427-28, 642 N.Y.S.2d 903 [2d Dept.1996];  Ferraro v. Town of Huntington, 202 A.D.2d 468, 469, 609 N.Y.S.2d 36 [2d Dept.1994];  Pascucci v. Town of Oyster Bay, 186 A.D.2d 725, 726-27, 588 N.Y.S.2d 663 [2d Dept.1992].)

Here, however, Plaintiff was not injured during play or practice on a baseball field.   Undoubtedly, some of the risks that “inhere” in the game of baseball or that will be “open and obvious” on the playing field are also risks that “inhere” or will be “open and obvious” in the simulation provided in the indoor constructed environment of batting cages and pitching machines, but they are not the same.   Because a risk of injury is not assumed without awareness “of the potential for injury of the mechanism from which the injury results” (see Maddox v. City of New York, 66 N.Y.2d at 278, 496 N.Y.S.2d 726, 487 N.E.2d 553), and the “mechanism” that allegedly caused Plaintiff's injury is not the same as those addressed in the decided cases involving injury during play or practice on a field, Defendant's prima facie showing on this motion must necessarily differ.

This Court has been able to find only one decision addressing a claim that injury was caused by a defect in a batting cage, and two decisions addressing claims of injury resulting from the use of a pitching machine.   Although Plaintiff here was swinging at a baseball projected at him by a pitching machine, there is no allegation that his injury was caused, even in part, by the machine or its operation. As a potential “mechanism” of injury that modifies the dynamics of play, however, a pitching machine presents a circumstance analogous to a batting cage.

In Hanna v. State of New York, 46 Misc.2d 9, 258 N.Y.S.2d 694 [Ct. Cl. 1965], the plaintiff was umpiring behind a batting cage, “consisting of a metal frame covered by a netting of twine forming openings about two inches square,” when “a foul tip left the player's bat” and “struck and shattered the right lens of his eyeglasses, causing particles of glass to enter and cut the cornea of his right eye” (id. at 10-11, 258 N.Y.S.2d 694.)   The court found that “the ball did not pass through the net,” and that “any worn or defective condition of the net ․ was not the proximate cause of the accident.”  (Id. at 12, 258 N.Y.S.2d 694.)   Rather, because the plaintiff, “an intelligent young man, ․ [was] familiar with the game of baseball and ․ aware of the risks involved in acting as he did,” “aware that there purposely was slack in the netting of the [cage] and ․ chargeable with knowledge that to stand with his face too close to the net would be dangerous,” “his act in doing so constituted contributory negligence which was the proximate cause of the accident.”  (Id. at 12-13, 258 N.Y.S.2d 694.)  “[T]hree or four foul tips struck the net before the one that injured him.”  (Id. at 13, 258 N.Y.S.2d 694.)

In Hawley v. Binghamton Mets Baseball Club, Inc., 262 A.D.2d 729, 691 N.Y.S.2d 626 [3d Dept.1999], the court rejected the plaintiff's contention “that the operator of [a] pitching machine enhanced plaintiff's risk by adjusting the machine so as to cause the balls to be projected progressively higher into the air,” because, among other reasons, “plaintiff should have reasonably expected to catch balls with varying trajectories while participating in a pop-fly contest” (id. at 731-32, 691 N.Y.S.2d 626.)   Moreover, “because the risk of fielding fly balls without wearing protective eyewear is so obvious, the court rejected the contention that defendants had a duty to provide such eyewear or warn plaintiff of the danger of wearing regular glasses” (id. at 732, 691 N.Y.S.2d 626.)

The plaintiff in Harris v. Cherry Valley-Springfield Sch. Dist., 305 A.D.2d 964, 760 N.Y.S.2d 768 [3d Dept.2003] was struck near his eye by a “wild” pitch from a pitching machine (see id. at 769.)   Defendant was granted summary judgment on the ground of primary assumption of risk (see id.)   The plaintiff, “a very experienced and knowledgeable baseball player,” “was fully familiar with pitching machines and was aware that pitches thrown by such machines could be wild.”  (Id. at 965, 760 N.Y.S.2d 768.)   The plaintiff “previously had been hit by a wild pitch thrown from another pitching machine.”  (Id.)

 These three opinions illustrate that, where the injury is alleged to have been caused by some characteristic of play that is not itself “inherent” in a sport as usually played, but is allegedly caused instead by some addition to or modification of the activity, such as a batting cage or pitching machine, the plaintiff's appreciation of the risk must be determined by reference to the addition or modification.   In other words, the “mechanism” of the injury consists of, or at least includes, the activity in the manner in which it is conducted.   A defendant seeking summary dismissal of the plaintiff's claim in such a case must show prima facie that the risk under those circumstances was appreciated and accepted.   As will appear, Defendant here has failed to do so.

As noted, Plaintiff was 14 years old on the day he was injured at Defendant's facility.   He was five feet, ten inches tall, and weighed approximately 150-160 pounds.   He had played organized baseball since he was seven or eight years old;  had been using batting cages since he was about ten;  and had been using Defendant's facility since he was 10 or 11, visiting it several times a month.   Plaintiff might fairly be characterized as “an experienced amateur baseball player” (see Kennedy v. Rockville Centre Union Free Sch. Dist., 186 A.D.2d 110, 111, 587 N.Y.S.2d 442 [2d Dept.1992] ), and, indeed, possessed knowledge and experience not only of batting cages generally, but of the batting cages at Defendant's facility.

At his examination before trial, Plaintiff identified photographs as depicting the batting cage he had been using when he was injured.   He had frequently used that cage before his accident, and neither the “layout” nor the “equipment” had been changed during that time.  (Examination Before Trial of John Demelio, Exhibit D to Affirmation, at 14.)   Plaintiff continued to use the batting cages at Defendant's facility after the accident without incident.

Most important to Defendant's position on this motion, Plaintiff acknowledged at his deposition that “[i]n the times that [he] had been playing baseball” before the accident, he had seen a baseball strike a pole, fence, or wall, and “deflect” and “bounce into the field of play.”  (Id. at 30.)   He was not asked, however, and did not testify, as to whether any player was struck by the deflected ball.

Defendant's counsel concludes from this evidence that “[t]his type of risk is inherent at a batting cage facility,” and “[t]his is why participants at a batting cage are given helmets to wear during the course of hitting within the batting cage, (sic ) itself.”  (Affirmation, ¶ 32.)   Except for the use of helmets, supported by Plaintiff's deposition testimony, counsel's conclusory statement is not supported by any evidence, and is not shown to be founded on counsel's personal knowledge or expertise.   To the contrary, Plaintiff testified at his deposition that he had never seen a ball ricochet on his previous visits to Defendant's facility, and “never heard of” “anyone else who had suffered any type of injury as a result of the balls ricocheting in the batting cages.”  (Demelio Examination Before Trial, at 22-23.)

In other words, to the extent that Defendant's showing on this motion includes any direct evidence on whether the “mechanism” of Plaintiff's injury is “inherent at a batting cage facility” (Affirmation, ¶ 32), or that the injury-causing condition was “open and obvious,” the only evidence is that the risk is and was neither.   The use of helmets provides circumstantial evidence of the existence of some risk of injury and awareness of the risk by participants.   But, in the absence of any description of batting cages, batting cage facilities, and the usual manner of play, either generally or at Defendant's facility;  as well as the associated risks of injury, either founded on professional expertise or not;  any inference arising from the use of helmets is insufficient to satisfy Defendant's burden on this motion.

Assuming, however, that Defendant has met its burden on this motion, Plaintiff must raise a triable issue as to whether the doctrine of primary assumption of risk applies to preclude Plaintiff's recovery.   In his opposition, Plaintiff contends that his injury “was caused by defendant's defectively designed, constructed and maintained safety device, the netting and frame separating each of the defendant's batters boxes, and thus was not a risk inherent in the use of batting cages”;  rather, “the risk that caused plaintiff's injury was an enhanced risk and thus insufficient to establish the defense of assumption of the risk.”  (Affirmation in Opposition to Motion for Summary Judgment, ¶ 8.)

Plaintiff supports his opposition with his own affidavit, the affidavit of a “sports and recreational safety consultant” (Affidavit in Opposition to Motion for Summary Judgment, ¶ 1), and the transcript of the deposition testimony of Defendant's witness, David Shamah.   The testimony of Defendant's witness is cited only to describe the configuration of Defendant's facility, including the arrangement of the batting cages, and the design and construction of the batting cages themselves, including the poles and vinyl netting that served to separate the six spaces for batting.  (Affirmation in Opposition to Motion for Summary Judgment, ¶ ¶ 4, 6.)

Plaintiff's affidavit is comprised of assertions directed to establishing that he was not aware of any risk that a ball he hit, either on a baseball field or in one of Defendant's batting cages, could ricochet back at him after striking a fence or pole.  (Affidavit in Opposition to Motion for Summary Judgment, ¶ ¶ 3-4.)   The assertions are helpful only to the extent that such a risk does not “inhere” in the game of baseball or the use of batting cages, and is not a consequence of an “open and obvious” condition of the place of play.   Although relatively young (again, 14), because of his acknowledged experience with baseball and batting cages, he would presumably know what “[a] reasonable person of participatory age or experience would be expected to know” (see Morgan v. State of New York, 90 N.Y.2d at 488, 662 N.Y.S.2d 421, 685 N.E.2d 202.)

Plaintiff also offers that he “normally use[s] a helmet when batting during a game or practice to protect [his] head from wild pitches,” and that he “wore a helmet the day of [his] accident because [he] was hitting baseballs that were being thrown by a pitching machine.”  (Affidavit in Opposition to Motion for Summary Judgment, ¶ 5.)

The core of Plaintiff's opposition is the affidavit of Arthur H. Mittelstaedt, Jr., Ed. D., a “sports and recreation safety consultant.”  (Affidavit in Opposition to Motion for Summary Judgment, ¶ 1.) Defendant's reply does not challenge Dr. Mittelstaedt's qualifications to render expert opinion on the issues here, and so the Court will only note that Dr. Mittelstaedt “was involved in approximately eight projects involving the planning, design and construction, including safety considerations, of batting cages.”  (Id., ¶ 2.)

Dr. Mittelstaedt offers his opinions based upon his review of the deposition testimony of Plaintiff and Defendant's witness, four photographs, a “contract diagram of defendants (sic ) batting cages,” and an “architectural drawing of the defendant's facility.”  (Id., ¶ 3.) Dr. Mittelstaedt concludes that Defendant “not only created a ricochet risk which would not be an inherent risk in a properly constructed batting cage, but [Defendant] by failing to address the ricochet risk once it was created by padding the poles substantially enhanced or increased the ricochet risk to its customers who used the cages.”   (Id., ¶ 8.)

Specifically, according to Plaintiff's expert, the offending pole “created an unreasonable risk of ricochet that was not an inherent risk in the use of batting cages in 1998 when the defendant's facility opened or on the date of plaintiff's accident” (id., ¶ 4);  Defendant's placement of metal poles in close proximity to and within the plaintiff's forward hitting radius ․ did not conform to safe standards of batting cage design and construction accepted in the industry, and created an unreasonable ricochet risk (id., ¶ 5);  “the industry standard in design and construction of batting cages, at the time of this occurrence, eliminated ricochet risks” by a number of described methods (id., ¶ 6);  and that with respect to the batting cage Plaintiff was using when he was injured, “[i]t was contrary to accepted safety practices in the industry to attach the netting ․ directly to the pole, and leave the pole unpadded, or unprotected from ball impact by properly hung netting” (id., ¶ 7.)

Plaintiff argues that “the fact that the claimed risk, negligent condition causing the plaintiff's injury was created by the defendant through its design, maintenance and operating of a batting cage safety device (frame and netting separating batting cages) puts this case squarely on point with Siegel v. City of New York,” decided by the Court of Appeals with Morgan v. State of New York, 90 N.Y.2d 471, 662 N.Y.S.2d 421, 685 N.E.2d 202.  (Affirmation in Opposition to Motion for Summary Judgment, ¶ 12.)

“As in Seigel [Siegel] where the plaintiff was injured by reason of defective netting used to prevent tennis balls from going into adjacent courts the plaintiff here was injured by reason of a defectively designed and constructed netting frame the purpose of which was to prevent baseballs from being hit into adjacent batting cages.”  (Id., ¶ 16.)

The torn net in Siegel, which “may qualify as and constitute an allegedly negligent condition occurring in the ordinary course of any property's maintenance” (Morgan v. State of New York, 90 N.Y.2d at 488, 662 N.Y.S.2d 421, 685 N.E.2d 202), represents a different type of risk than the design defect alleged here.   But Siegel certainly illustrates that, although nets and poles may be “inherently part of the playing and participation of [a] sport at ․ facilities” like tennis courts and batting cages, an allegedly defective net or pole “is by its nature not automatically an inherent risk of [the] sport as a matter of law for summary judgment purposes.”  (See id.)

An expert affidavit may create a triable issue as to whether the design of a sports facility “was unique and created a dangerous condition over and above the usual dangers that are inherent in the sport.”  (See Owen v. R.J.S. Safety Equipment, Inc., 79 N.Y.2d at 970, 582 N.Y.S.2d 998, 591 N.E.2d 1184;  see also Lamey v. Foley, 188 A.D.2d 157, 164-65, 594 N.Y.S.2d 490 [4th Dept.1993].)   Relevant are “rules and customs whose purpose is to enhance the safety of participants” and “the standards maintained by other similarly used facilities.”  (See Turcotte v. Fell, 68 N.Y.2d at 440, 442, 510 N.Y.S.2d 49, 502 N.E.2d 964;  see also Greenburg v. Peekskill City Sch. Dist., 255 A.D.2d 487, 488-89, 680 N.Y.S.2d 622 [2d Dept.1998] [“recommended minimum safety standard”];  compare Ribaudo v. La Salle Inst., 45 A.D.3d at 557, 846 N.Y.S.2d 209;  Loewenthal v. Catskill Funland, Inc., 237 A.D.2d at 263-64, 654 N.Y.S.2d 169 [“prevailing industry standards”].)

Defendant argues that Plaintiff's expert's affidavit is insufficient to raise a triable issue of fact, because it is “nothing more than a conclusory statement with no basis or support in this record.”  (Reply Affirmation, ¶ 22.)   Defendant notes that the expert “apparently ․ never even visited the subject facility,” and “does not put forth any measurements taken or even discuss ․ what the proper measurements or dimensions would be.”  (Id.) According to Defendant, the expert, moreover, “fails to delineate any specific industry standards,” and “fails to demonstrate that the standards cited by him represent the general custom or usage in the industry.”  (Id., ¶ 25.)

First, Dr. Mittelstaedt's affidavit is not devoid of probative value simply because he did not inspect Defendant's facility.   The photographs, “contract diagram,” and architectural drawing can be a sufficient basis for an expert opinion.  (See Torres v. W.J. Woodward Construction, Inc., 32 A.D.3d 847, 849, 821 N.Y.S.2d 617 [2d Dept.2006].)   Defendant itself relies on the photographs, and the other documents were apparently obtained from Defendant, and are not challenged by it.

Defendant is correct that Dr. Mittelstaedt's opinions are not supported by specific measurements, nor does he report any test results or reports of injury, to support his opinion that the design of Defendant's batting cage “created an unreasonable risk of ricochet that was not an inherent risk in the use of batting cages” (Affidavit in Opposition to Motion for Summary Judgment, ¶ 4), and that Defendant's design “substantially enhanced or increased the ricochet risk” (id., ¶ 8.) Defendant relies upon Diaz v. New York Downtown Hospital, 99 N.Y.2d 542, 754 N.Y.S.2d 195, 784 N.E.2d 68 [2002] for the principle that “[w]here [an] expert's ultimate assertions are speculative or unsupported by any evidentiary foundation, ․ the opinion should be given no probative force” (id. at 544, 754 N.Y.S.2d 195, 784 N.E.2d 68.)

But even Diaz recognizes that some opinions may be supported by “knowledge acquired through professional experience.”  (See id. at 545, 754 N.Y.S.2d 195, 784 N.E.2d 68;  see also Walker v. Commack Sch. Dist., 31 A.D.3d 752, 753, 820 N.Y.S.2d 287 [2d Dept.2006];  Delgado v. Markwort Sporting Goods Co., 11 Misc.3d 1072(A), 2006 N.Y. Slip Op. 50528[U], *5-*8, 2006 WL 852116 [Civ. Ct., Kings County].)   And Plaintiff's showing in opposition must be considered in light of Defendant's purported prima facie showing, which includes no direct evidence, expert or otherwise, that the risk of ricochet was “inherent” or “open and obvious” in the use of batting cages.

Defendant is also correct that Dr. Mittelstaedt provides little to support his understanding of the “industry standard in design and construction of batting cages” (id., ¶ 6.) But he does provide “Standards for Batting Range Safety & Operation” from a manufacturer of batting cages that he says “are illustrative of the industry standard” (id.)   In industries that are not regulated or organized for common purposes, custom and practice may not be found described in one document.

 Plaintiff's burden on this motion is to raise a triable issue, not to make a prima facie showing as to Defendant's liability;  they are not necessarily the same thing.  (See American Honda Finance Corp. v. Progressive Cas. Ins. Co., 290 A.D.2d 850, 852, 736 N.Y.S.2d 517 [3d Dept.2002];  Ocean Diagnostic Imaging, Inc. v. Utica Mutual Ins. Co., 6 Misc.3d 131(A), 2005 N.Y. Slip Op. 50081[U], * 2, 2005 WL 263750 [App. Term, 2d Dept.].)   The issue here, moreover, is not whether Defendant breached a duty measured by industry standards, but whether a duty is owed measured by the risks inherent in the activity.   Particularly in light of Defendant's showing, the Court concludes that, notwithstanding any deficiencies in the expert affidavit, Plaintiff has raised a triable issue as to the applicability of the doctrine of primary assumption of risk.   The Court declines Plaintiff's request, however, that it search the record on this motion, and grant summary judgment to Plaintiff on the question.

Defendant's motion is denied.

JACK M. BATTAGLIA, J.