| Williams v Clinton Cent. School Dist. |
| 2009 NY Slip Op 00742 [59 AD3d 938] |
| February 6, 2009 |
| Appellate Division, Fourth Department |
| Cassandra Williams, Appellant, v Clinton Central School District,Respondent. |
—[*1] Gorman, Waszkiewicz, Gorman & Schmitt, Utica (William P. Schmitt of counsel), fordefendant-respondent.
Appeal from an order of the Supreme Court, Oneida County (Anthony F. Shaheen, J.),entered November 9, 2007 in a personal injury action. The order granted the motion of defendantfor summary judgment and dismissed the complaint.
It is hereby ordered that the order so appealed from is unanimously affirmed without costs.
Memorandum: Plaintiff, a senior in high school, commenced this action seeking damages forinjuries she sustained when she fell while performing a stunt during cheerleading practice atschool. We conclude that Supreme Court properly granted defendant's motion seeking summaryjudgment dismissing the complaint. Defendant met its initial burden by establishing as a matterof law that the action is barred based on the primary assumption of risk by plaintiff. Althoughdefendant was "under a duty to exercise ordinary reasonable care to protect student athletesinvolved in extracurricular sports from unreasonably increased risks" (Driever v Spackenkill Union Free SchoolDist., 20 AD3d 384, 384 [2005]; see Benitez v New York City Bd. of Educ., 73NY2d 650, 658 [1989]), the risks that are known and fully comprehended, open and obvious,inherent in the activity, and reasonably foreseeable are assumed by the student athlete (seeTurcotte v Fell, 68 NY2d 432, 439 [1986]; Lamey v Foley, 188 AD2d 157, 164[1993]). Here, defendant established that "[t]he risk posed [to] plaintiff by performing hercheerleading routine on a bare wood gym floor, as opposed to a matted surface, was obvious"(Traficenti v Moore Catholic High School, 282 AD2d 216 [2001]), and thus that"plaintiff assumed the risks of the sport in which she voluntarily engaged" (Fisher v SyossetCent. School Dist., 264 AD2d 438, 439 [1999], lv denied 94 NY2d 759 [2000]).Plaintiff's submissions in opposition to the motion "consisted only of speculative and conclusoryopinions to support the conclusion that the defendant[ ] had unreasonably increased the risks tothe plaintiff by failing to provide mats" (DiGiose v Bellmore-Merrick Cent. High School Dist., 50 AD3d623, 624 [2008]). Plaintiff's submissions therefore were insufficient to raise a triable issue offact (see generally Zuckerman v City of New York, 49 NY2d 557, 562 [1980]).Present—Hurlbutt, J.P., Smith, Fahey, Peradotto and Pine, JJ.