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Vailes v. Nassau County Police Activity League

SUPREME COURT OF THE STATE OF NEW YORK APPELLATE DIVISION SECOND JUDICIAL DEPARTMENT


April 13, 2010

TYSHON VAILES, ETC., ET AL., APPELLANTS,
v.
NASSAU COUNTY POLICE ACTIVITY LEAGUE, INC., ROOSEVELT UNIT, RESPONDENT.

In an action to recover damages for personal injuries, etc., the plaintiffs appeal from an order of the Supreme Court, Nassau County (Phelan, J.), entered April 22, 2009, which granted the defendant's motion for summary judgment dismissing the complaint.

Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.

This opinion is uncorrected and subject to revision before publication in the Official Reports.

WILLIAM F. MASTRO, J.P., HOWARD MILLER, LEONARD B. AUSTIN and SHERI S. ROMAN, JJ.

(Index No. 2654/07)

DECISION & ORDER

ORDERED that the order is reversed, on the law, with costs, and the defendant's motion for summary judgment dismissing the complaint is denied.

We agree with the defendant that the Supreme Court providently exercised its discretion in declining to consider the affidavit of the plaintiffs' purported expert, since that expert was not identified by the plaintiffs until after the note of issue and certificate of readiness had been filed attesting to the completion of discovery (see Gerardi v Verizon N.Y., Inc., 66 AD3d 960, 961). Nonetheless, even without considering that affidavit, in response to the defendant's prima facie showing of its entitlement to judgment as a matter of law based upon its defense that the infant plaintiff assumed the risk of his injury (see Morgan v State of New York, 90 NY2d 471; see generally Alvarez v Prospect Hosp., 68 NY2d 320), the plaintiffs raised triable issues of fact as to whether the defendant unreasonably increased the risk of injury to him (see Karr v Brant Lake Camp, 261 AD2d 342; Mauner v Feinstein, 213 AD2d 383; see also Egan v Clark, 2005 WL 1415720 [SD NY] [applying New York law]).

The defendant's remaining contentions are without merit.

MASTRO, J.P., MILLER, AUSTIN and ROMAN, JJ., concur.

20100413

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