Opinion
13423 Index No. 305991/14 Case No. 2020-00054
03-25-2021
Fabian TORRES, an infant BY his mother and natural guardian, Amanda GUILLOT, and Amanda Guillot individually, Plaintiffs–Appellants, v. LOISAIDA, INC., Defendant, Felix Millian Little League, Defendant–Respondent.
David J. Hernandez & Associates, Brooklyn (David J. Hernandez of counsel), for appellant. Wilson Elser Moskowitz Edelman & Dicker LLP, New York (Patrick J. Lawless of counsel), for respondent.
David J. Hernandez & Associates, Brooklyn (David J. Hernandez of counsel), for appellant.
Wilson Elser Moskowitz Edelman & Dicker LLP, New York (Patrick J. Lawless of counsel), for respondent.
Renwick, J.P., Mazzarelli, Singh, Gonza´lez, JJ.
Order, Supreme Court, Bronx County (Julia I. Rodriguez, J.), entered on or about October 11, 2019, which granted defendant Felix Millian Little League's motion for summary judgment dismissing the complaint as against it, unanimously affirmed, without costs.
Summary judgment was properly granted in this action where the 13–year–old infant plaintiff was injured when, as he was fielding third base in a baseball game, a baserunner slid into the base and collided with his left shin. The infant plaintiff had played baseball for seven years, and voluntarily assumed the inherent risks of the game (see Woo v. United Nations Intl. Sch., 137 A.D.3d 488, 489, 27 N.Y.S.3d 18 [1st Dept. 2016] ; Navarro v. City of New York, 87 A.D.3d 877, 877–878, 929 N.Y.S.2d 236 [1st Dept. 2011] ). Since recovery is precluded by the fact that he assumed the risks inherent in playing baseball, plaintiffs may not recover under a theory of negligent supervision (see Roberts v. Boys & Girls Republic, Inc., 51 A.D.3d 246, 251, 850 N.Y.S.2d 38 [1st Dept. 2008], affd 10 N.Y.3d 889, 861 N.Y.S.2d 603, 891 N.E.2d 719 [2008] ).
We reject plaintiffs' argument that the baserunner's metal cleats created an enhanced or concealed risk that was not assumed. The little league rules that defendant was required to follow permitted the wearing of such cleats, and both the 13–year–old infant plaintiff and his father testified that they observed the baserunner wearing metal cleats. Plaintiffs have not shown that defendant failed to provide safety equipment that would have prevented the inherent risks (see Bukowski v. Clarkson Univ., 19 N.Y.3d 353, 356–357, 948 N.Y.S.2d 568, 971 N.E.2d 849 [2012] ).
Plaintiffs' unpreserved argument that summary judgment should have been denied because defendant disposed of its players' roster at the time of the accident and plaintiffs were therefore unable to identify the baserunner and determine whether he was older than the other players in the game, in violation of defendant's rules, is unavailing. By filing their note of issue, plaintiffs waived their entitlement to further discovery (see Hui–Lin Wu v. City of New York, 183 A.D.3d 411, 412, 123 N.Y.S.3d 590 [1st Dept. 2020] ). In any event, their contention that the baserunner was older than the other players is based on speculation.