| Murphy v Polytechnic Univ. |
| 2009 NY Slip Op 00514 [58 AD3d 816] |
| January 27, 2009 |
| Appellate Division, Second Department |
| Patricia Murphy, Respondent, v Polytechnic University etal., Appellants. |
—[*1] Jacoby & Meyers (Finkelstein & Partners, LLP, Newburgh, N.Y. [Kara L. Campbell], ofcounsel), for respondent.
In an action to recover damages for personal injuries, the defendants appeal, as limited bytheir brief, from so much of an order of the Supreme Court, Kings County (Kramer, J.), datedDecember 31, 2007, as denied their motion for summary judgment dismissing the complaint.
Ordered that the order is affirmed insofar as appealed from, with costs.
The plaintiff, a member of the women's softball team of the defendant PolytechnicUniversity, allegedly was injured when, during a team practice, she was hit in the head with a batswung by her coach, the defendant James Barrett, also known as Jimmy Barrett. On their motionfor summary judgment dismissing the complaint, the defendants demonstrated their entitlementto judgment as a matter of law based upon the doctrine of primary assumption of the risk, whichprovides that a voluntary participant in a sport or recreational activity consents to thosecommonly appreciated risks which are inherent in and arise out of the nature of the sport oractivity generally and flow from such participation (see Morgan v State of New York, 90NY2d 471, 484 [1997]), such as the risk of getting hit with a bat swung during softball practice(see Chaikin v Long Is. CityYMCA, 29 AD3d 619, 619-620 [2006]; Napoli v Mount Alvernia, Inc., 239AD2d 325, 326 [1997]). However, in opposition, the plaintiff raised triable issues of fact as towhether the defendants[*2]"unreasonably increased" that risk(Benitez v New York City Bd. of Educ., 73 NY2d 650, 658 [1989]; see Muniz vWarwick School Dist., 293 AD2d 724 [2002]; Stryker v Jericho Union Free SchoolDist., 244 AD2d 330, 330-331 [1997]), and as to whether she was injured as a result of"reckless . . . conduct" (Morgan v State of New York, 90 NY2d at 485;cf. McGee v Board of Educ. of City of N.Y., 16 AD2d 99, 101-102 [1962]).Accordingly, the Supreme Court properly denied the defendants' motion for summary judgmentdismissing the complaint. Florio, J.P., Covello, Balkin and Leventhal, JJ., concur. [See18 Misc 3d 623.]