Steven Charles, respondent, v. Uniondale School District Board of Education, appellant.

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

Steven Charles, respondent, v. Uniondale School District Board of Education, appellant.

2011–07550 (Index No. 4910/09)

Decided: January 24, 2012

REINALDO E. RIVERA, J.P. SHERI S. ROMAN SANDRA L. SGROI JEFFREY A. COHEN, JJ. Congdon, Flaherty, O'Callaghan, Reid, Donlon, Travis & Fishlinger, Uniondale, N.Y. (Gregory A. Cascino of counsel), for appellant. Bisogno & Meyerson, Brooklyn, N.Y. (Elizabeth Mark Meyerson of counsel), for respondent.

Argued—December 20, 2011

DECISION & ORDER

In an action to recover damages for personal injuries, the defendant appeals from an order of the Supreme Court, Nassau County (Lally, J.), dated July 8, 2011, which denied its motion for summary judgment dismissing the complaint.

ORDERED that the order is affirmed, with costs.

By engaging in a sport or recreational activity, a participant 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 (see Morgan v. State of New York, 90 N.Y.2d 471, 484–486;  Turcotte v. Fell, 68 N.Y.2d 432, 439;  Maddox v. City of New York, 66 N.Y.2d 270, 277–278).   Participants properly may be held to have consented, by their participation, to those injury-causing events which are known, apparent, or reasonably foreseeable consequences of participation, but not to unassumed, concealed, or unreasonably increased risks (see Benitez v New York City Bd. of Educ., 73 N.Y.2d 650, 658;  Turcotte v. Fell, 68 N.Y.2d at 439;  Weller v. Colleges of the Senecas, 217 A.D.2d 280, 283).

Here, the defendant failed to satisfy its prima facie burden of establishing its entitlement to judgment as a matter of law (see Schmidt v. Massapequa High School, 83 AD3d 1039;  Hubbard v East Meadow Union Free School Dist., 277 A.D.2d 353).   Although being struck with a passed ball is a known risk inherent in the sport of lacrosse (see Godwin v. Russi, 62 AD3d 945;  Fithian v Sag Harbor Union Free School Dist., 54 AD3d 719, 720), the defendant failed to eliminate all triable issues of fact as to whether it unreasonably increased the risk of harm to the plaintiff by failing to provide him with head and face protection during preseason high school lacrosse practice (see Hubbard v East Meadow Union Free School Dist., 277 A.D.2d at 353).   Since the defendant did not 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, and it is unnecessary to consider the sufficiency of the plaintiff's opposing papers (see e.g. Winegrad v. New York Univ. Med. Ctr., 64 N.Y.2d 851, 853).

RIVERA, J.P., ROMAN, SGROI and COHEN, JJ., concur.

ENTER:

Aprilanne Agostino

Clerk of the Court

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