Opinion
2013-04-17
Anthony C. PHILIPPOU, etc., et al., respondents, v. BALDWIN UNION FREE SCHOOL DISTRICT, et al., appellants.
Ahmuty, Demers & McManus, Albertson, N.Y. (Glenn A. Kaminska and Nicholas M. Cardascia of counsel), for appellant Baldwin Union Free School District. Congdon, Flaherty, O'Callaghan, Reid, Donlon, Travis & Fishlinger, Uniondale, N.Y. (Gregory A. Cascino of counsel), for appellant Lawrence Public Schools.
Ahmuty, Demers & McManus, Albertson, N.Y. (Glenn A. Kaminska and Nicholas M. Cardascia of counsel), for appellant Baldwin Union Free School District. Congdon, Flaherty, O'Callaghan, Reid, Donlon, Travis & Fishlinger, Uniondale, N.Y. (Gregory A. Cascino of counsel), for appellant Lawrence Public Schools.
Nathaniel M. Swergold, Cedarhurst, N.Y., for respondents.
PETER B. SKELOS, J.P., JOHN M. LEVENTHAL, LEONARD B. AUSTIN, and SANDRA L. SGROI, JJ.
In an action to recover damages for personal injuries, etc., the defendant Baldwin Union Free School District appeals, and the defendant Lawrence Public Schools separately appeals, as limited by their respective briefs, from so much of an order of the Supreme Court, Nassau County (Feinman, J.), dated January 17, 2012, as denied their respective motions for summary judgment dismissing the complaint and all cross claims insofar as asserted against each of them.
ORDERED that the order is affirmed insofar as appealed from, with one bill of costs.
The injured plaintiff, then a 13–year–old student at Lawrence Middle School, in the defendant Lawrence Union Free School District, sued herein as Lawrence Public Schools, was a member of his school's wrestling team. He allegedly was injured while participating in a wrestling match during a meet held at Baldwin Middle School, in the defendant Baldwin Union Free School District. The injured plaintiff, who had never wrestled before joining his school's team, had participated in eight wrestling matches as of the date of the subject wrestling match.
The injured plaintiff and his mother, suing derivatively, commencedthis action against the two school districts, alleging that the injured plaintiff sustained personal injuries when two wrestling mats, which had been taped together for use during the meet, one of which was considerably older than the other, came apart during the match in which he was participating. The injured plaintiff testified at his deposition that, after his opponent placed him in a headlock, his opponent tripped on the mats which had separated and the injured plaintiff's right arm struck the then-exposed hardwood floor. In the complaint, the plaintiffs alleged, inter alia, that the mats had been improperly taped and secured.
The defendants separately moved for summary judgment dismissing the complaint and all cross claims insofar as asserted against each of them, arguing that the infant plaintiff had assumed the risk of injury. The Supreme Court denied the motions, and the defendants separately appeal.
“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’ ” ” ( Weinberger v. Solomon Schechter Sch. of Westchester, 102 A.D.3d 675, 677, 961 N.Y.S.2d 178, quoting Alqurashi v. Party of Four, Inc., 89 A.D.3d 1047,1047, 934 N.Y.S.2d 214, 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 Trupia v. Lake George Cent. School Dist., 14 N.Y.3d 392, 395, 901 N.Y.S.2d 127, 927 N.E.2d 547;Turcotte v. Fell, 68 N.Y.2d 432, 438, 510 N.Y.S.2d 49, 502 N.E.2d 964;Viola v. Carmel Cent. School Dist., 95 A.D.3d 1206, 1207, 945 N.Y.S.2d 155). “The principle of primary assumption of risk extends to those risks associated with the construction of a playing field and any open and obvious condition thereon” ( Castro v. City of New York, 94 A.D.3d 1032, 1032, 944 N.Y.S.2d 155;see Viola v. Carmel Cent. School Dist., 95 A.D.3d at 1207, 945 N.Y.S.2d 155). “If the playing surface is as safe as it appears to be, and the condition in question is not concealed such that it unreasonably increases risk assumed by the players, the doctrine applies” ( Cotty v. Town of Southampton, 64 A.D.3d 251, 254, 880 N.Y.S.2d 656;see Bocelli v. County of Nassau, 93 A.D.3d 747, 748, 940 N.Y.S.2d 660;Palladino v. Lindenhurst Union Free School Dist., 84 A.D.3d 1194, 1195, 924 N.Y.S.2d 474;Rosenbaum v. Bayis Ne‘Emon, Inc., 32 A.D.3d 534, 820 N.Y.S.2d 326). However, “a board of education, its employees, agents and organized athletic councils must exercise ordinary reasonable care to protect student athletes voluntarily involved in extracurricular sports from unassumed, concealed or unreasonably increased risks” ( 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 Schmidt v. Massapequa High School, 83 A.D.3d 1039, 1039, 921 N.Y.S.2d 547).
Here, the defendants failed to establish, prima facie, that the injured plaintiff, by participating in the wrestling match, assumed the risk of being injured in the manner in which he allegedly was injured here. The defendants' moving papers failed to demonstrate, prima facie, that the allegedly dangerous condition caused by the improperly taped or secured mats did not unreasonably increase the risk of injury inherent in the sport of wrestling ( see Blumstein v. Half Hollow Hills Cent. School Dist., 96 A.D.3d 702, 703, 945 N.Y.S.2d 426;Cotty v. Town of Southampton, 64 A.D.3d at 254, 880 N.Y.S.2d 656;Laboy v. Wallkill Cent. School Dist., 201 A.D.2d 780, 781, 607 N.Y.S.2d 746).
Since the defendants did not establish their prima facie entitlement to judgment as a matter of law, we need not consider the sufficiency of the plaintiffs' 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' respective motions for summary judgment dismissing the complaint and all cross claims insofar as asserted against each of them.