ZACHARY v. YOUNG ISRAEL OF WOODMERE (2012)

In an action to recover damages for personal injuries, etc., the plaintiffs appeal from an order of the Supreme Court, Nassau County (Sher, J.), entered November 1, 2010, which granted the defendant's motion for summary judgment dismissing the complaint.

ORDERED that the order is affirmed, with costs.

The infant plaintiff, while playing kickball in a gymnasium owned by the defendant, a synagogue, allegedly injured his arm when he ran into a set of closed double doors after crossing home plate.   The game was part of a weekly youth program run by the defendant, in which the infant plaintiff had previously participated.   The infant plaintiff, by his mother, Sheila G., and Sheila G., individually (hereinafter together the plaintiffs), commenced this action.   The defendant moved for summary judgment dismissing the complaint based on the doctrine of primary assumption of risk.   The Supreme Court granted the motion.   The plaintiffs appeal, and we affirm.

 The doctrine of primary assumption of risk provides that a voluntary participant in a sporting or recreational activity “consents to those commonly appreciated risks which are inherent in and arise out of the nature of the sport generally and flow from such participation” (Morgan v. State of New York, 90 N.Y.2d 471, 484, 662 N.Y.S.2d 421, 685 N.E.2d 202;  see Cotty v. Town of Southampton, 64 A.D.3d 251, 253–254, 880 N.Y.S.2d 656).   Significantly, “[t]his includes those risks associated with the construction of the playing surface and any open and obvious condition on it” (Welch v. Board of Educ. of City of N.Y., 272 A.D.2d 469, 469, 707 N.Y.S.2d 506).   While a premises owner owes a duty to exercise due care to make the conditions of the playing surface “ ‘as safe as they appear to be,’ ” ‘if “ ‘the risks of the activity are fully comprehended or perfectly obvious, plaintiff has consented to them and defendant has performed its duty’ ” (Morgan v. State of New York, 90 N.Y.2d at 484, 662 N.Y.S.2d 421, 685 N.E.2d 202, quoting Turcotte v. Fell, 68 N.Y.2d 432, 439, 510 N.Y.S.2d 49, 502 N.E.2d 964;  see Bendig v. Bethpage Union Free School Dist., 74 A.D.3d 1263, 1264, 904 N.Y.S.2d 731;  Brown v. City of New York, 69 A.D.3d 893, 893, 895 N.Y.S.2d 442).

 Here, the defendant made a prima facie showing of entitlement to judgment as a matter of law based on the doctrine of primary assumption of risk by demonstrating that the risk of colliding with the closed double doors was inherent in the activity of indoor kickball, and the condition of the double doors was open and obvious (see Trevett v. City of Little Falls, 6 N.Y.3d 884, 816 N.Y.S.2d 738, 849 N.E.2d 961;  Wilkes v. YMCA of Greater N.Y., 68 A.D.3d 542, 543, 889 N.Y.S.2d 458;  Ribaudo v. La Salle Inst., 45 A.D.3d 556, 846 N.Y.S.2d 209).

 In opposition, the plaintiffs failed to raise a triable issue of fact as to whether the defendant, inter alia, negligently placed home plate only approximately three feet away from the double doors, failed to appropriately pad the gymnasium walls, or had insufficient staff available to supervise the activity.   The expert affidavit submitted by the plaintiffs relied on nonmandatory, non-exclusive guidelines (see Tavares v. City of New York, 88 A.D.3d 689, 690, 930 N.Y.S.2d 462;  Kazlow v. City of New York, 253 A.D.2d 411, 411, 676 N.Y.S.2d 229).   Accordingly, the affidavit was insufficient to defeat the defendant's motion for summary judgment.   Moreover, the infant plaintiff's injury occurred over so short a time span that, “ ‘even the most intense supervision could not have prevented it’ ” (Weiner v. Jericho Union Free School Dist., 89 A.D.3d 728, 729, 932 N.Y.S.2d 138, quoting Convey v. City of Rye School Dist., 271 A.D.2d 154, 160, 710 N.Y.S.2d 641), and, thus, any alleged lack of supervision was not a proximate cause of his injury.

Accordingly, the Supreme Court properly granted the defendant's motion for summary judgment dismissing the complaint.