Opinion
12753/09.
Decided March 23, 2011.
Michael A. Cardozo, Corporation Counsel of the City of New York, Jamaica, New York, Of Counsel: William H. Ng, Esq., Defendants Counsel.
Law Offices of Herschel Kulefsky, New York, New York, Of Counsel: Arthur Sisser, Esq., Plaintiff's Counsel.
Defendants, the City of New York, the Public Schools Athletic League, the City of New York Department of Education, the New York City Board of Education, and the Big Apple Games, move for summary judgment, dismissing plaintiff's Complaint against them.
This is an action to recover damages for personal injuries allegedly sustained by infant plaintiff Reynud Shields on July 14, 2008 when he was playing lacrosse, without protective gear, at the Bayside High School Field, in the County of Queens, City and State of New York.
The City of New York's motion for dismissal of the Complaint, against them only, is granted, without opposition.
As to the other moving defendant, the law is clear that the proponent "must make a prima facie showing of entitlement to judgment as a matter of law, tendering sufficient evidence to eliminate an material issues of fact from the case . . ." ( Winegrad v. New York Univ. Med. Center, 64 NY2d 851, 852).
Movant has submitted the deposition of the infant plaintiff. He is an experienced lacrosse player who knew lacrosse was a contact sport and that he needed to wear protective gear. The deposition of supervising coach Lunati, also submitted, stated that participation in the lacrosse games was entirely voluntarily without repercussions for a refusal to play. This establishes defendants' prima facie case for summary judgment ( See Morales v. Beacon City School Dist. , 44 AD3d 724, 726 [2d Dept. 2007]).
Once the proponent has made this showing, the burden of proof shifts to the party opposing the motion to produce evidentiary proof in admissible form to establish that material issues of fact exist which requires a jury trial ( Alvarez v. Prospect Hospital, 68 NY2d 320, 324).
"[A] school district remains under a duty to exercise ordinary reasonable care to protect student athletes involved in extracurricular sports from unreasonably increased risks" ( Baker v. Briarcliff Sch. Dist., 205 AD2d 652, 655 [2d Dept. 1994] (internal citations omitted)). The affidavit of a fellow lacrosse coach that failure to provide safety equipment is a breach of sound coaching practices and the infant plaintiff's testimony that he had repeatedly requested safety equipment and was assured that it would be provided, raises a triable issue of fact as to the reasonableness of defendant's actions ( See Cody v. Massapequa Union Free Sch. Dist. No. 23, 227 AD2d 368, 369 [2d Dept. 1996]; Baker, 205 AD2d at 652; see also Royal v. City of Syracuse, 309 AD2d 1284, 1285 [4th Dept. 2003])
Accordingly, the motion is denied as to the remaining defendants.