M. R., etc., et al., respondents, v. NASTICS NEXT GENERATION INC (2022)

DECISION & ORDER

In an action to recover damages for personal injuries, etc., the defendants appeal from an order of the Supreme Court, Suffolk County (Fernando Camacho, J.), dated May 4, 2020.  The order denied the motion of the defendant Nastics Next Generation, Inc., for summary judgment dismissing the complaint insofar as asserted against it.

ORDERED that the appeal by the defendant Nastics, Inc., is dismissed, as that defendant is not aggrieved by the order appealed from (see CPLR 5511;  Mixon v. TBV, Inc., 76 A.D.3d 144, 156–157, 904 N.Y.S.2d 132);  and it is further,

ORDERED that the order is affirmed on the appeal by the defendant Nastics Next Generation, Inc.;  and it is further,

ORDERED that one bill of costs is awarded to the plaintiffs payable by the defendant Nastics Next Generation, Inc.

In May 2017, the infant plaintiff allegedly sustained injuries when she fell from a balance beam at the defendants’ gymnastics facility.  At the time of the accident, the infant plaintiff was approximately 31/212 years old.  The infant plaintiff, by her mother and natural guardian, and her mother suing derivatively, commenced this action against the defendants, alleging, inter alia, that the defendants were negligent in their supervision of the infant plaintiff.  After discovery, the defendant Nastics Next Generation, Inc. (hereinafter Next Generation), moved for summary judgment dismissing the complaint insofar as asserted against it.  The Supreme Court denied the motion.  Next Generation appeals.

When considering the evidence submitted in support of Next Generation's motion in the light most favorable to the plaintiffs, as the nonmoving parties (see J.M. v. North Babylon Union Free Sch. Dist., 145 A.D.3d 978, 978, 42 N.Y.S.3d 860), Next Generation failed to establish, prima facie, that its supervision of the infant plaintiff was adequate or that any lack of supervision was not a proximate cause of the infant plaintiff's injuries (see Morace v. Commack N. Baseball Clubs, Inc., 181 A.D.3d 672, 674, 117 N.Y.S.3d 868;  A.D.G. v. Children's Ark Daycare Ctr., Inc., 174 A.D.3d 861, 862, 103 N.Y.S.3d 312;  J.M. v. North Babylon Union Free Sch. Dist., 145 A.D.3d at 978, 42 N.Y.S.3d 860;  see also Talyanna S. v. Mount Vernon City Sch. Dist., 97 A.D.3d 561, 562, 948 N.Y.S.2d 103).  Moreover, contrary to Next Generation's contention, the evidence proffered in support of its motion, which included transcripts of the deposition testimony of the infant plaintiff's mother and of the instructor who supervised the balance beam station during the infant plaintiff's class at the time of the accident, did not establish, prima facie, that the accident occurred in so short a span of time that even the most intense supervision could not have prevented it (see SM v. Plainedge Union Free Sch. Dist., 162 A.D.3d 814, 817, 79 N.Y.S.3d 215;  DiGiacomo v. Town of Babylon, 124 A.D.3d 828, 829, 2 N.Y.S.3d 548;  cf.  Cohen v. Half Hollow Hills Cent. Sch. Dist., 123 A.D.3d 1081, 1082, 1 N.Y.S.3d 196).

Next Generation also failed to establish its prima facie entitlement to judgment as a matter of law based upon the doctrine of assumption of risk.  The “doctrine applies where a consenting participant in sporting and amusement activities ‘is aware of the risks;  has an appreciation of the nature of the risks;  and voluntarily assumes the risks’ ” (Bukowski v. Clarkson Univ., 19 N.Y.3d 353, 356, 948 N.Y.S.2d 568, 971 N.E.2d 849, quoting Morgan v. State of New York, 90 N.Y.2d 471, 484, 662 N.Y.S.2d 421, 685 N.E.2d 202).  “If the risks of the activity are fully comprehended or perfectly obvious, plaintiff has consented to them and defendant has performed its duty” (Bukowski v. Clarkson Univ., 19 N.Y.3d at 356, 948 N.Y.S.2d 568, 971 N.E.2d 849 [internal quotation marks omitted]).  Risks which are “commonly encountered” or “inherent” in a sport, as well as risks “involving less than optimal conditions,” are risks which participants have accepted and are encompassed by the assumption of risk doctrine (id. [internal quotation marks omitted];  see Bryant v. Town of Brookhaven, 135 A.D.3d 801, 802, 23 N.Y.S.3d 358).  “It is not necessary ․ 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” (Siegel v. Albertus Magnus High Sch., 153 A.D.3d 572, 574, 60 N.Y.S.3d 202 [internal quotation marks omitted]).  Awareness of risk is to be assessed against the background of the skill and experience of the particular plaintiff (see Morgan v. State of New York, 90 N.Y.2d at 486, 662 N.Y.S.2d 421, 685 N.E.2d 202;  Zhou v. Tuxedo Ridge, LLC, 180 A.D.3d 960, 962–963, 119 N.Y.S.3d 251;  Bryant v. Town of Brookhaven, 135 A.D.3d at 802, 23 N.Y.S.3d 358).

Here, “the infant plaintiff, being only [approximately 31/212] years old at the time of the incident, was incapable as a matter of law of being held responsible for [her] actions” (Smith v. Sapienza, 115 A.D.2d 723, 724, 496 N.Y.S.2d 538;  see Verni v. Johnson, 295 N.Y. 436, 437–438, 68 N.E.2d 431;  Colarusso v. Dunne, 286 A.D.2d 37, 38–40, 732 N.Y.S.2d 424).  Accordingly, the Supreme Court properly determined that the doctrine of assumption of risk was inapplicable as a matter of law to the approximately 31/212- year-old infant plaintiff (see Verni v. Johnson, 295 N.Y. at 437–438, 68 N.E.2d 431;  Colarusso v. Dunne, 286 A.D.2d at 38–40, 732 N.Y.S.2d 424;  Smith v. Sapienza, 115 A.D.2d at 724, 496 N.Y.S.2d 538).

Since Next Generation failed to establish its prima facie entitlement to judgment as a matter of law, the Supreme Court properly denied its motion for summary judgment dismissing the complaint insofar as asserted against it, regardless of the sufficiency of the plaintiffs’ papers in opposition (see Winegrad v. New York Univ. Med. Ctr., 64 N.Y.2d 851, 853, 487 N.Y.S.2d 316, 476 N.E.2d 642).

CONNOLLY, J.P., ROMAN, CHRISTOPHER and FORD, JJ., concur.