| Noble v Bronxville Union Free School Dist. |
| 2007 NY Slip Op 08425 [45 AD3d 548] |
| November 7, 2007 |
| Appellate Division, Second Department |
| Ashley Noble, Plaintiff, v Bronxville Union Free SchoolDistrict, Defendant and Third-Party Plaintiff-Respondent. Elizabeth "Libby" Goodell,Third-Party Defendant-Appellant. |
—[*1] Thomas M. Bona, P.C., White Plains, N.Y. (James C. Miller and Stephanie Bellantoni ofcounsel), for defendant third-party plaintiff-respondent. Victor E. Schwartz, Washington, D.C., and Covington & Burling, New York, N.Y., forAmerican Tort Reform Association, amicus curiae.
In an action, inter alia, to recover damages for personal injuries, the third-party defendantappeals, as limited by her brief, from so much of an order of the Supreme Court, WestchesterCounty (Bellantoni, J.), entered December 15, 2006, as denied her motion to dismiss thethird-party complaint pursuant to CPLR 3211 (a) (7), and to impose costs against the defendantthird-party plaintiff and for an award of an attorney's fee pursuant to CPLR 8303-a.
Ordered that the order is affirmed insofar as appealed from, with costs.
The infant plaintiff was injured when she was hit in the face by another student's hockey stickwhile playing in a field hockey scrimmage under the auspices of the defendant third-partyplaintiff, Bronxville Union Free School District (hereinafter the School). In her complaint, theplaintiff alleged, inter alia, that the School failed to properly supervise the scrimmage. TheSchool [*2]commenced a third-party action against the studentathlete (hereinafter the appellant) who struck the infant plaintiff. The appellant moved to dismissthe third-party complaint for failure to state a cause of action pursuant to CPLR 3211 (a) (7), andto impose costs against the School and for an award of an attorney's fee pursuant to CPLR 8303-aon the ground that the School commenced a frivolous third-party action. In the order appealedfrom, the Supreme Court, among other things, denied the appellant's motion. We affirm the orderinsofar as appealed from.
While it may come to light during discovery that the appellant does not bear anyresponsibility for the underlying incident because her conduct was neither reckless norintentional, and that she did not create a danger above those inherent in the sport of field hockey(see Morgan v State of New York, 90 NY2d 471, 486 [1997]; Owen v R.J.S. SafetyEquip., 79 NY2d 967, 970 [1992]; DeMasi v Rogers, 34 AD3d 720, 721 [2006]; Gahan v MineolaUnion Free School Dist., 241 AD2d 439, 440 [1997]), the third-party complaint states acognizable cause of action against the appellant for contribution or indemnification (seeCPLR 1401; Raquet v Braun, 90 NY2d 177, 183 [1997]; Leon v Martinez, 84NY2d 83, 87-88 [1994]; Morad vMorad, 27 AD3d 626, 626-627 [2006]). Accordingly, the Supreme Court properlydenied the appellant's motion in its entirety (see CPLR 3211 [a] [7]; Roth vGoldman, 254 AD2d 405, 406 [1998]). Santucci, J.P., Lifson, Covello and McCarthy, JJ.,concur.