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Supreme Court, Appellate Division, Second Department, New York.

Marc MUNIZ, etc., et al., Respondents, v. WARWICK SCHOOL DISTRICT, Appellant, et al., Defendant.

Decided: April 29, 2002

FRED T. SANTUCCI, J.P., WILLIAM D. FRIEDMANN, HOWARD MILLER, and ROBERT W. SCHMIDT, JJ. McCormick & Turpin, Pearl River, NY, (Stephen J. Hubel of counsel), for appellant. Larkin, Axelrod, Trachte & Tetenbaum, LLP, Newburgh, NY, (Gregory M. Sobo of counsel), for respondents.

In an action to recover damages for personal injuries, etc., the defendant Warwick School District appeals from an order of the Supreme Court, Orange County (Berry, J.), dated June 29, 2001, which denied its motion for summary judgment dismissing the complaint insofar as asserted against it.

ORDERED that the order is affirmed, with costs.

The infant plaintiff Marc Muniz was voluntarily participating in a softball game during a physical education class at Warwick High School.   He was the “on-deck” batter when he was struck in the head by a baseball bat that was released by a fellow student, the defendant Mitchell Jacobson, after hitting the ball.   The defendant Warwick School District (hereinafter the District) subsequently moved for summary judgment dismissing the complaint insofar as asserted against it on the ground that the infant plaintiff assumed the risk of injury by voluntarily participating in the softball game. The Supreme Court denied the motion.   We affirm.

The District correctly contends that being struck in the head by a bat is a risk inherent in the sport of softball (see Morgan v. State of New York, 90 N.Y.2d 471, 662 N.Y.S.2d 421, 685 N.E.2d 202;  Checchi v. Socorro, 169 A.D.2d 807, 565 N.Y.S.2d 175;  Marlowe v. Rush-Henrietta Cent. School Dist., 167 A.D.2d 820, 561 N.Y.S.2d 934, affd. 78 N.Y.2d 1096, 578 N.Y.S.2d 872, 586 N.E.2d 55).   However, after the District made out a prima facie case for summary judgment, the plaintiffs' expert and eyewitness affidavits raised questions of fact as to whether the risk of injury was unreasonably increased by the failure of the District's physical education teacher, who was supervising the game, to issue helmets to the players and to direct them regarding a safe place to stand on a field lacking fences, on-deck circles, or dugouts (see Stryker v. Jericho Union Free School Dist., 244 A.D.2d 330, 663 N.Y.S.2d 868;  Baker v. Briarcliff School Dist., 205 A.D.2d 652, 613 N.Y.S.2d 660;  Parisi v. Harpursville Cent. School Dist., 160 A.D.2d 1079, 553 N.Y.S.2d 566).

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