| Demelio v Playmakers, Inc. |
| 2009 NY Slip Op 04852 [63 AD3d 777] |
| June 9, 2009 |
| Appellate Division, Second Department |
| John Demelio, Respondent, v Playmakers, Inc., et al.,Defendants, and Brooklyn Indoor Sports Center, Inc., Appellant. |
—[*1] Gardiner & Nolan, Brooklyn, N.Y. (William Gardiner of counsel), for respondent.
In an action to recover damages for personal injuries, the defendant Brooklyn Indoor SportsCenter, Inc., appeals from an order of the Supreme Court, Kings County (Battaglia, J.), datedApril 8, 2008, which denied its motion for summary judgment dismissing the complaint insofaras asserted against it.
Ordered that the order is affirmed, with costs.
The plaintiff was practicing his swing at an indoor batting cage operated by the defendantBrooklyn Indoor Sports Center, Inc. (hereinafter the appellant), when a ball that he struckricocheted off a metal pole separating the cages and struck his left eye. Among otherspecifications of negligence, the plaintiff alleged that the appellant unreasonably created anenhanced risk of injury to batters by failing to pad the metal pole. The appellant moved forsummary judgment dismissing the complaint insofar as asserted against it, on the ground that theplaintiff's cause of action was barred by the doctrine of primary assumption of risk. The SupremeCourt denied the motion and we affirm.
"[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]; see Anand v Kapoor, 61 AD3d787 [2009]). In support of its motion, the appellant failed to make a prima facie showingthat the allegedly increased risk of ricocheting baseballs presented by an unpadded metal pole inan enclosed batting cage was "an inherent risk of [the] sport as a matter of law for summaryjudgment purposes" (Siegel v City of New York, 90 NY2d 471, 488 [1997]).
Accordingly, the Supreme Court properly denied the appellant's motion for summaryjudgment dismissing the complaint insofar as asserted against it. Florio, J.P., Miller, Covello andAustin, JJ., concur.