Opinion
08-09-2017
Andrew DESERTO, Jr., respondent, v. GOSHEN CENTRAL SCHOOL DISTRICT, et al., appellants.
Marks, O'Neill, O'Brien, Doherty & Kelly, P.C., Elmsford, NY (Kevin W. Connolly of counsel), for appellant Goshen Central School District, and Catania, Mahon, Milligram & Rider, PLLC, Newburgh, NY (David A. Rosenberg of counsel), for appellant Hyde Park Central School District (one brief filed). Levine and Wiss, PLLC (Anthony A. Ferrante and Mitchell Dranow, Sea Cliff, NY, of counsel), for respondent.
Marks, O'Neill, O'Brien, Doherty & Kelly, P.C., Elmsford, NY (Kevin W. Connolly of counsel), for appellant Goshen Central School District, and Catania, Mahon, Milligram & Rider, PLLC, Newburgh, NY (David A. Rosenberg of counsel), for appellant Hyde Park Central School District (one brief filed).
Levine and Wiss, PLLC (Anthony A. Ferrante and Mitchell Dranow, Sea Cliff, NY, of counsel), for respondent.
Appeal from an amended order of the Supreme Court, Orange County (Robert A. Onofry, J.), dated April 27, 2015. The amended order denied the defendants' separate motions for summary judgment dismissing the complaint and all cross claims insofar as asserted against them and denied the defendants' separate motions to strike the plaintiff's expert witness disclosure and to preclude the plaintiff's expert from testifying at trial.
ORDERED that the amended order is affirmed, with costs.
In September 2010, the plaintiff, then a high school student in the defendant Goshen Central School District (hereinafter Goshen), allegedly was injured while playing in a varsity football game at Franklin D. Roosevelt High School, which is located in the defendant Hyde Park Central School District (hereinafter Hyde Park). The plaintiff allegedly was tackled by two players from the opposing team and forced out of bounds, causing him to hit his head on a steel plate covering a pole vault pit several feet from the football field sideline.
The plaintiff commenced this action to recover damages for personal injuries against Goshen and Hyde Park. The defendants separately moved for summary judgment dismissing the complaint and all cross claims insofar as asserted against them, arguing that the action was barred by the doctrine of primary assumption of the risk. They also separately moved, inter alia, to preclude the plaintiff's expert from testifying at trial. In an amended order dated April 27, 2015, the Supreme Court denied the defendants' motions. We affirm.
"Pursuant to the doctrine of primary assumption of risk, a voluntary participant in a sporting or recreational activity ‘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’ " ( Brown v. Roosevelt Union Free Sch. Dist., 130 A.D.3d 852, 853, 14 N.Y.S.3d 140, quoting Morgan v. State of New York, 90 N.Y.2d 471, 484, 662 N.Y.S.2d 421, 685 N.E.2d 202 ; see Custodi v. Town of Amherst, 20 N.Y.3d 83, 88, 957 N.Y.S.2d 268, 980 N.E.2d 933 ; Simone v. Doscas, 142 A.D.3d 494, 494, 35 N.Y.S.3d 720 ; Philippou v. Baldwin Union Free Sch. Dist., 105 A.D.3d 928, 929, 963 N.Y.S.2d 701 ). "Participants are not deemed to have assumed the risks of reckless or intentional conduct, or concealed or unreasonably increased risks" ( Brown v. Roosevelt Union Free Sch. Dist., 130 A.D.3d at 854, 14 N.Y.S.3d 140 ; see Morgan v. State of New York, 90 N.Y.2d at 485, 662 N.Y.S.2d 421, 685 N.E.2d 202 ; Simone v. Doscas, 142 A.D.3d at 494, 35 N.Y.S.3d 720). Thus, "[a]n educational institution organizing a team sporting activity must exercise ordinary reasonable care to protect student athletes voluntarily participating in organized athletics from unassumed, concealed, or enhanced risks" ( Bukowski v. Clarkson Univ., 19 N.Y.3d 353, 356, 948 N.Y.S.2d 568, 971 N.E.2d 849 ; see 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 ).
Here, the Supreme Court properly determined that the defendants failed to establish their prima facie entitlement to judgment as a matter of law. The defendants failed to eliminate a triable issue of fact as to whether the placement of the steel plate in the vicinity of the playing field unreasonably increased the risk of injury to the participants (see Simone v. Doscas, 142 A.D.3d at 494–495, 35 N.Y.S.3d 720; Philippou v. Baldwin Union Free Sch. Dist., 105 A.D.3d at 930, 963 N.Y.S.2d 701 ; Viola v. Carmel Cent. School Dist., 95 A.D.3d 1206, 1207, 945 N.Y.S.2d 155 ).
Since the defendants failed to establish their prima facie entitlement to judgment as a matter of law, we need not consider the sufficiency of the opposition papers (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 ).
Accordingly, the Supreme Court properly denied the defendants' separate motions for summary judgment dismissing the complaint and all cross claims insofar as asserted against them.
The defendants' remaining contention is without merit.
CHAMBERS, J.P., MILLER, BARROS and CONNOLLY, JJ., concur.