IOSUE v. Harmony Heights High School, third-party defendant. (1999)

In a negligence action to recover damages for personal injuries, etc., the defendants third-party plaintiffs appeal, as limited by their brief, from so much of an order of the Supreme Court, Suffolk County (Doyle, J.), dated August 18, 1998, as denied their motion for summary judgment dismissing the complaint.

ORDERED that the order is affirmed insofar as appealed from, with costs.

The Supreme Court properly determined that there were issues of fact as to whether the plaintiff-teacher assumed the risk of being hit by a bat during the softball game in which she participated, in light of the evidence supporting her claim of inherent compulsion by her employer, the third-party defendant school, to participate in the game (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:  see also, Morgan v. State of New York, 90 N.Y.2d 471, 484, 662 N.Y.S.2d 421, 685 N.E.2d 202).

MEMORANDUM BY THE COURT.