MURPHY v. POLYTECHNIC UNIVERSITY

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

Patricia MURPHY, respondent, v. POLYTECHNIC UNIVERSITY, et al., appellants.

Decided: January 27, 2009

ANITA R. FLORIO, J.P., JOSEPH COVELLO, RUTH C. BALKIN, and JOHN M. LEVENTHAL, JJ. Wade Clark Mulcahy, New York, N.Y. (Paul F. Clark and Lora H. Gleicher of counsel), for appellants. Jacoby & Meyers (Finkelstein & Partners, LLP, Newburgh, N.Y. [Kara L. Campbell], of counsel), for respondent.

In an action to recover damages for personal injuries, the defendants appeal, as limited by their brief, from so much of an order of the Supreme Court, Kings County (Kramer, J.), dated December 31, 2007, as denied their motion for summary judgment dismissing the complaint.

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

 The plaintiff, a member of the women's softball team of the defendant Polytechnic University, allegedly was injured when, during a team practice, she was hit in the head with a bat swung by her coach, the defendant James Barrett, a/k/a Jimmy Barrett.   On their motion for summary judgment dismissing the complaint, the defendants demonstrated their entitlement to judgment as a matter of law based upon the doctrine of primary assumption of the risk, which provides that a voluntary participant in a sport or recreational activity consents to those commonly appreciated risks which are inherent in and arise out of the nature of the sport or activity generally and flow from such participation (see Morgan v. State of New York, 90 N.Y.2d 471, 484, 662 N.Y.S.2d 421, 685 N.E.2d 202), such as the risk of getting hit with a bat swung during softball practice (see Chaikin v. Long Is. City YMCA, 29 A.D.3d 619, 619-620, 814 N.Y.S.2d 733;  Napoli v. Mount Alvernia, Inc., 239 A.D.2d 325, 326, 657 N.Y.S.2d 197).   However, in opposition, the plaintiff raised triable issues of fact as to whether the defendants “unreasonably increased” that risk (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 Muniz v. Warwick School Dist., 293 A.D.2d 724, 743 N.Y.S.2d 113;  Stryker v. Jericho Union Free School Dist., 244 A.D.2d 330, 330-331, 663 N.Y.S.2d 868), and as to whether she was injured as a result of “reckless ․ conduct” (Morgan v. State of New York, 90 N.Y.2d at 485, 662 N.Y.S.2d 421, 685 N.E.2d 202;  cf. McGee v. Board of Educ. of City of N.Y., 16 A.D.2d 99, 101-102, 226 N.Y.S.2d 329).   Accordingly, the Supreme Court properly denied the defendants' motion for summary judgment dismissing the complaint.

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