Opinion
Submitted May 12, 1999
June 21, 1999
In a negligence action to recover damages for personal injuries, etc., the defendants third-party plaintiffs appeal, as limited by their brief, from so much of an order of the Supreme Court, Suffolk County (Doyle, J.), dated August 18, 1998, as denied their motion for summary judgment dismissing the complaint.
Adler, Larkin Higgins (Diamond, Paino, Cardo, King, Peters Fodera, Brooklyn, N.Y. [Deborah F. Peters] of counsel), for defendants third-party plaintiffs-appellants.
Tartamella, Tartamella Fresolone, Hauppauge, N.Y. (Michael Tartamella of counsel), for respondents.
SONDRA MILLER, J.P., THOMAS R. SULLIVAN, WILLIAM D. FRIEDMANN, DANIEL F. LUCIANO, SANDRA J. FEUERSTEIN, JJ.
DECISION ORDER
ORDERED that the order is affirmed insofar as appealed from, with costs.
The Supreme Court properly determined that there were issues of fact as to whether the plaintiff-teacher assumed the risk of being hit by a bat during the softball game in which she participated, in light of the evidence supporting her claim of inherent compulsion by her employer, the third-party defendant school to participate in the game ( see, Benitez v. New York City Bd. of Educ., 73 N.Y.2d 650, 658: see also, Morgan v. State of New York, 90 N.Y.2d 471, 484).