Opinion
03-08-2016
Willis WOO, Plaintiff–Appellant, v. UNITED NATIONS INTERNATIONAL SCHOOL, et al., Defendants–Respondents, St. John's University, et al., Defendants.
James T. Moriarty, New York, for appellant. Wade Clark Mulcahy, New York (Brett L. Kuller of counsel), for United Nations International School, Kenneth Wrye, and Harry Muniz, respondents. Law Office of James J. Toomey, New York (Evy L. Kazansky of counsel), for Alex DeRosa, respondent.
James T. Moriarty, New York, for appellant.
Wade Clark Mulcahy, New York (Brett L. Kuller of counsel), for United Nations International School, Kenneth Wrye, and Harry Muniz, respondents.
Law Office of James J. Toomey, New York (Evy L. Kazansky of counsel), for Alex DeRosa, respondent.
Opinion
Order, Supreme Court, New York County (Barbara Jaffe, J.), entered July 15, 2013, which, inter alia, granted the motion of defendants United Nations International School, Kenneth Wrye and Harry Muniz (collectively, UNIS), and the cross motion of defendant Alex DeRosa, for summary judgment dismissing the complaint as against them, unanimously affirmed, without costs.
Summary judgment was properly granted in this action where plaintiff was injured when he was struck in the face by a baseball thrown by DeRosa, since plaintiff assumed the risk of injuries resulting from DeRosa's thrown ball during a pre-game warm-up (see Bukowski v. Clarkson Univ., 19 N.Y.3d 353, 948 N.Y.S.2d 568, 971 N.E.2d 849 [2012]; Godwin v. Russi, 62 A.D.3d 945, 879 N.Y.S.2d 567 [2d Dept.2009] ). Plaintiff's claim that UNIS failed to provide proper safety equipment is unavailing (see Bukowski, at 356–357, 948 N.Y.S.2d 568, 971 N.E.2d 849; Hawley v. Binghamton Mets Baseball Club, 262 A.D.2d 729, 732, 691 N.Y.S.2d 626 [3d Dept.1999] ). While protective gear may have aided plaintiff, he was not acting as a catcher at the time of injury, but was warming up for a game. Plaintiff had practiced catching balls with and without a catcher's mask and knew that he could get injured playing baseball. Furthermore, the risk of getting struck by a baseball is “so obvious,” that defendants had no duty to provide such equipment to the 18–year–old plaintiff (Hawley, at 732, 691 N.Y.S.2d 626; compare Merino v. Board of Educ. of City of N.Y., 59 A.D.3d 248, 873 N.Y.S.2d 65 [1st Dept.2009] ).
Since plaintiff's recovery is precluded by the fact that he assumed the risks inherent in playing baseball, he may not recover on a theory of negligent supervision. Such remains a viable theory “only insofar as the risk upon which the action is based has not been assumed” (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] ).
Plaintiff's remaining contentions are unavailing.