| DiGiose v Bellmore-Merrick Cent. High School Dist. |
| 2008 NY Slip Op 02955 [50 AD3d 623] |
| April 1, 2008 |
| Appellate Division, Second Department |
| Nicole DiGiose et al., Respondents, v Bellmore-MerrickCentral High School District et al., Appellants. |
—[*1] Todd A. Restivo, Garden City, N.Y., for respondents.
In an action to recover damages for personal injuries, etc., the defendants appeal from anorder of the Supreme Court, Nassau County (Davis, J.), dated July 12, 2007, which denied theirmotion for summary judgment dismissing the complaint.
Ordered that the order is reversed, on the law, with costs, and the defendants' motion forsummary judgment dismissing the complaint is granted.
The infant plaintiff, a high school sophomore with extensive cheerleading experience, wasinjured during cheerleading practice in her high school gym when the cheerleader that she was"spotting" fell without warning and knocked her to the floor. The plaintiffs allege that thedefendants were negligent in allowing her to practice cheerleading stunts on a gym floor that wasnot covered by a protective mat and that the defendants had failed to instruct and supervise herproperly in the activity. The Supreme Court denied the defendants' motion for summaryjudgment dismissing the complaint. We reverse.
"[B]y engaging in a sport or recreational activity, a participant consents to those commonlyappreciated risks which are inherent in and arise out of the nature of the sport generally and flowfrom such participation" (Morgan v State of New York, 90 NY2d 471, 484 [1997]). Insupport of their motion, the defendants established their entitlement to judgment as a matter oflaw by demonstrating [*2]that the plaintiff engaged in the activityof cheerleading knowing the risks inherent in that activity (see Weber v William FloydSchool Dist., UFSD, 272 AD2d 396, 397 [2000]; Fisher v Syosset Cent. School Dist.,264 AD2d 438, 439 [1999]).
In opposition, the plaintiffs failed to raise a triable issue of fact. Even where the risk of theactivity is assumed, "a board of education, its employees, agents and organized athletic councilsmust exercise ordinary reasonable care to protect student athletes voluntarily involved inextracurricular sports from unassumed, concealed or unreasonably increased risks" (Benitez vNew York City Bd. of Educ., 73 NY2d 650, 658 [1989]). Here, however, the affidavit of theplaintiffs' expert, upon which the plaintiffs relied to oppose the motion, consisted only ofspeculative and conclusory opinions to support the conclusion that the defendants hadunreasonably increased the risks to the plaintiff by failing to provide mats or to instruct andsupervise her properly in the activity. Thus, it was insufficient to satisfy the plaintiffs' burden inopposition to the defendants' motion (see Lombardo v Cedar Brook Golf & Tennis Club, Inc., 39 AD3d818, 819 [2007]; D'Auguste vShanty Hollow Corp., 26 AD3d 403, 404 [2006]; Barbato v Hollow Hills Country Club, 14 AD3d 522, 523 [2005];Shea v Sky Bounce Ball Co., 294 AD2d 486, 487 [2002]), and the defendants' motion forsummary judgment dismissing the complaint should have been granted. Spolzino, J.P., Ritter,Santucci and Carni, JJ., concur.