| Balone v New York State Amateur Softball Assn., Inc. |
| 2010 NY Slip Op 01904 [71 AD3d 710] |
| March 9, 2010 |
| Appellate Division, Second Department |
| Susan Balone et al., Respondents, v New York StateAmateur Softball Association, Inc., et al., Defendants, and Dutchess County Girls FastpitchSoftball Association et al., Appellants. |
—[*1] Worby Groner Edelman LLP, White Plains, N.Y. (Richard S. Vecchio and Michael DelVecchio of counsel), for respondents.
In an action to recover damages for personal injuries, etc., the defendants Dutchess CountyGirls Fastpitch Softball Association and Dutchess Debs appeal, as limited by their brief, from somuch of an order of the Supreme Court, Dutchess County (Brands, J.), dated November 21,2008, as denied that branch of their motion which was for summary judgment dismissing thecomplaint insofar as asserted against them.
Ordered that the order is affirmed insofar as appealed from, with costs.
In 2003 the plaintiff Susan Balone (hereinafter the injured plaintiff) allegedly was injuredwhen she was accidentally struck by a ball while participating in one of two simultaneoussoftball clinics for girls run by the defendants Dutchess County Girls Fastpitch SoftballAssociation and Dutchess Debs (hereinafter together the Dutchess defendants). In moving forsummary judgment, the Dutchess defendants established their prima facie entitlement tojudgment as a matter of law dismissing the complaint insofar as asserted against them bydemonstrating that the injured plaintiff was aware of and assumed the inherent risk of beingstruck by a ball while playing softball (see Murphy v Polytechnic Univ., 58 AD3d 816 [2009]; Munizv Warwick School Dist., 293 AD2d 724 [2002]; see also Morales v Beacon City School Dist., 44 AD3d 724[2007]).
In opposition, however, the plaintiffs raised triable issues of fact with respect to whether theDutchess defendants "unreasonably increased" the risk of injury (Benitez v New York CityBd. of Educ., 73 NY2d 650, 658 [1989]) by, inter alia, failing to implement safety plans,devices, or physical barriers separating the two simultaneous softball clinics (see Murphy vPolytechnic Univ., 58 AD3d at 816-817; Muniz v Warwick School Dist., 293 AD2dat 724; see also Fithian v Sag HarborUnion Free School Dist., 54 AD3d 719 [2008]). Accordingly, the Supreme Courtproperly denied that branch of the Dutchess defendants' motion which was for summaryjudgment dismissing the complaint insofar as asserted against them. Skelos, J.P., Angiolillo,Balkin and Lott, JJ., concur.