Argued-June 2, 2017
Office of Robert S. Fader, P.C., Floral Park, NY (Antonio
Marano and Joel Sweetbaum of counsel), for appellant.
& Associates, P.C., Syosset, NY (Charles R. Strugatz of
counsel), for respondent Sewanhaka Central High School
Gialleonardo, Frankini & Harms, Mineola, NY (Russell M.
Plotkin of counsel), for respondent Malik Freeman.
WILLIAM F. MASTRO, J.P. MARK C. DILLON JEFFREY A. COHEN
VALERIE BRATHWAITE NELSON, JJ.
DECISION & ORDER
action to recover damages for personal injuries, the
plaintiff appeals, as limited by his brief, from so much of
an order of the Supreme Court, Nassau County (Winslow, J.),
entered July 6, 2015, as granted those branches of the
defendants' separate motions which were for summary
judgment dismissing the second amended complaint insofar as
asserted against each of them.
that the order is affirmed insofar as appealed from, with one
bill of costs.
plaintiff allegedly was injured in March 2012 during a
basketball game in a gym class at Elmont Memorial High School
when he was kicked in the leg by another student, the
defendant Malik Freeman. The plaintiff commenced this action
to recover damages for his injuries against Freeman and the
defendant Sewanhaka Central High School District (hereinafter
the School District), alleging that each was negligent.
School District and Freeman separately moved, inter alia, for
summary judgment dismissing the second amended complaint
insofar as asserted against each of them, arguing, among
other things, that the action was barred by the doctrine of
primary assumption of risk. In the order appealed from, the
Supreme Court granted the defendants' separate motions.
The plaintiff appeals.
the doctrine of primary assumption of risk, by engaging in a
sport or recreational activity, a participant "consents
to those commonly appreciated risks which are inherent in and
arise out of the nature of the sport generally and flow from
such participation" (Morgan v State of New
York, 90 N.Y.2d 471, 484; see Turcotte v Fell,
68 N.Y.2d 432, 439; Fenty v Seven Meadows Farms,
Inc., 108 A.D.3d 588; Mondelli v County of
Nassau, 49 A.D.3d 826, 827). "[B]y freely assuming
a known risk, a plaintiff commensurately negates any duty on
the part of the defendant to safeguard him or her from the
risk" (Trupia v Lake George Cent. School Dist.,
14 N.Y.3d 392, 395; see Turcotte v Fell, 68 N.Y.2d
at 439; Cotty v Town of Southampton, 64 A.D.3d 251,
254). If the risks of the activity are fully comprehended or
perfectly obvious, the plaintiff has consented to them and
the defendant has performed its duty (see Bukowski v
Clarkson Univ., 19 N.Y.3d 353, 356; Turcotte v
Fell, 68 N.Y.2d at 439; Fenty v Seven Meadows Farms,
Inc., 108 A.D.3d 588). However, a plaintiff will not be
deemed to have assumed the risks of reckless or intentional
conduct, or concealed or unreasonably increased risks (see
Anand v Kapoor, 15 N.Y.3d 946, 948; Morgan v
State of New York, 90 N.Y.2d at 485).
the defendants established, prima facie, that the plaintiff
voluntarily engaged in the activity of basketball and was
aware of the risks inherent in the activity, including the
possibility of contact or collision with other participants
(see Trevett v City of Little Falls, 6 N.Y.3d 884,
885; Stach v Warwick Val. Cent. Sch. Dist., 106
A.D.3d 720, 721; Adami v Warwick Val. Cent. Sch.
Dist., 105 A.D.3d 982; Ribaudo v La Salle
Inst., 45 A.D.3d 556, 557; Ciccone v Bedford Cent.
School Dist., 21 A.D.3d 437, 438). In opposition, the
plaintiff failed to raise a triable issue of fact. Contrary
to the plaintiff s contention, his testimony at a General
Municipal Law § 50-h hearing and his deposition that
Freeman had intentionally kicked him did not raise a triable
issue of fact as to the applicability of the primary
assumption of risk doctrine. The plaintiff has not asserted a
cause of action for an intentional tort, and neither the
second amended complaint nor the bills of particulars alleged
intentional conduct. "A plaintiff cannot, for the first
time in opposition to a motion for summary judgment, raise a
new or materially different theory of recovery against a
party from those pleaded in the complaint and the bill of
particulars" (Palka v Village of Ossining, 120
A.D.3d 641, 643; see Mezger v Wyndham Homes, Inc.,
81 A.D.3d 795, 796; Pinn v Baker's Variety, 32
A.D.3d 463, 464; Yaeger v UCC Constructors, 281
A.D.2d 990, 991).
contrary to the plaintiffs contention, he did not raise a
triable issue of fact as to the application of the inherent
compulsion doctrine, which "provides that the defense of
assumption of the risk is not a shield from liability, even
where the injured party acted despite obvious and evident
risks, when the element of voluntariness is overcome by the
compulsion of a superior" (Benitez v New York City
Bd. of Educ., 73 N.Y.2d 650, 658). The plaintiff
testified at his deposition that he chose to play basketball
from a number of options. Consequently, the inherent
compulsion doctrine is inapplicable (cf. Scavelli v Town
of Carmel, 131 A.D.3d 688, 690; Smith v J.H. W.
Elementary School, 52 A.D.3d 684, 685). The plaintiff s
remaining contentions either are without merit or need not be
reached in light of our determination.
the Supreme Court properly granted those branches of the
defendants' separate motions which were for summary
judgment dismissing the second amended ...