Opinion
CA 02-01680
December 30, 2002.
Appeal from an order of Supreme Court, Niagara County (Fricano, J.), entered November 28, 2001, which denied defendant's motion seeking summary judgment dismissing the complaint.
FELDMAN, KIEFFER HERMAN, LLP, BUFFALO (STEPHEN MANUELE OF COUNSEL), FOR DEFENDANT-APPELLANT.
PHILLIPS, LYTLE, HITCHCOCK, BLAINE HUBER LLP, BUFFALO (WILLIAM P. KEEFER OF COUNSEL), FOR PLAINTIFFS-RESPONDENTS.
PRESENT: PINE, J.P., WISNER, SCUDDER, KEHOE, AND BURNS, JJ.
MEMORANDUM AND ORDER
It is hereby ORDERED that the order so appealed from be and the same hereby is unanimously affirmed without costs.
Memorandum:
Supreme Court properly denied defendant's motion seeking summary judgment dismissing the complaint. The infant plaintiff, a high school cheerleader, was injured during a cheerleading practice being held in the school's foyer. Although defendant met its initial burden by establishing that the infant plaintiff "assumed the risks associated [with] this voluntary extracurricular sport" ( Weber v. William Floyd School Dist., UFSD, 272 A.D.2d 396, 397; see generally Benitez v. New York City Bd. of Educ., 73 N.Y.2d 650, 658), we conclude that plaintiffs raised a triable issue of fact whether the infant plaintiff was exposed to "unreasonably increased risks of injury" ( Sheehan v. Hicksville Union Free School Dist., 229 A.D.2d 1026, 1026; see also Cody v. Massapequa Union Free School Dist. No. 23, 227 A.D.2d 368, 369).