This decision has been referenced in a table in the New York Supplement.
James T. Moriarty, Esq., New York, NY, for plaintiff.
Paul F. Clark, Esq., Wade Clark Mulcahy, New York, NY, for defendant UNIS, Wrye, Muniz.
John P. Clark, Esq., Law Office of James J. Toomey, New York, NY, for defendant DeRosa.
BARBARA JAFFE, J.
By notice of motion dated September 25, 2012, defendants United Nations International School (UNIS), Wrye, and Muniz (collectively, UNIS) move for an order granting summary dismissal of the action against them. By notice of cross motion dated October 18, 2012, DeRosa also seeks an order granting him summary judgment. Plaintiff opposes.
I. UNDISPUTED FACTS
Plaintiff, a senior in high school, joined a baseball team sponsored by defendant UNIS. Affirmation of Paul F. Clark, Esq., dated Sept. 25, 2012 [Clark Aff.], Exh. D. As he only wanted to play catcher, he did not try out for any other position. Although plaintiff was familiar with the game, how it was played, the associated risks of injury, and had participated in games of stickball at school as well as several pick-up games outside of school id., he had never before played a school-organized baseball game, had never been thrown a full baseball pitch, and had participated in only one practice session prior to the accident. He also understood and acknowledged that he was aware of the potential risk of injury for those participating in baseball, and planned to try out for a team in college. Clark Aff.
The UNIS team always warmed up by running and participating in " soft tosses" during tryouts and practices before any other baseball activities, as well as before the baseball games themselves. Plaintiff was injured when he was struck by a baseball thrown by his teammate, co-defendant Alex DeRosa, during pre-game warm-ups on April 22, 2005. Id.
Notwithstanding that the rules of the New York Public High School Athletics Association mandate at least 10 team practices before participation in a game Affirmation of James T. Moriarty, Esq., dated Feb. 11, 2013 [Moriarty Aff.], Exh. 1, plaintiff was part of the UNIS team that day. After the team had completed its running warm-ups, it commenced soft tosses. DeRosa stood by the first base foul line. Plaintiff walked onto the field, approximately 20 or 25 feet away, turned around, and saw DeRosa holding a baseball at shoulder height. Keeping him under " constant observation," plaintiff observed DeRosa standing with both feet squarely on the ground, remaining motionless when he threw the ball in a straight line toward him. As DeRosa released the ball, plaintiff's glove was positioned at neck or face level, and he was prepared to catch the ball. The ball glanced off the outer portion of his glove, knocked him to the ground, and struck his left eye, fracturing the socket. Id. Plaintiff admitted that he had not adjusted to the throw and " obviously ... missed" it. He wore no safety equipment. Moriarty Aff., Exh. 2).
UNIS and DeRosa claim that there exists no issue of fact as to whether plaintiff voluntarily assumed the risk of being struck by a baseball, a risk incident to that inherent in playing baseball. They also maintain that plaintiff was in the best position to avoid the accident itself. They thus argues that they breached no duty of care. Clark Aff.; Affirmation of John P. Clark, Esq., dated Oct. 18, 2012.
In opposition, plaintiff contends that the throw was not an inherent risk, but the product of reckless or wanton conduct enabled by UNIS's neglect and failure to supervise DeRosa. (Moriarty Aff.). He otherwise denies any assumption of risk based on the facts which, he argues, raise an issue as to whether he assumed the inherent risk of playing baseball, given the existence of ...