| Bendig v Bethpage Union Free School Dist. |
| 2010 NY Slip Op 05715 [74 AD3d 1263] |
| June 29, 2010 |
| Appellate Division, Second Department |
| Sara N. Bendig et al., Respondents, v Bethpage UnionFree School District, Appellant. |
—[*1] Kreindler & Kreindler, LLP, New York, N.Y. (Megan W. Benett of counsel), forrespondents.
In an action to recover damages for personal injuries, the defendant appeals from an order ofthe Supreme Court, Nassau County (LaMarca, J.), dated December 9, 2009, which denied itsmotion for summary judgment dismissing the complaint.
Ordered that the order is reversed, on the law, with costs, and the defendant's motion forsummary judgment dismissing the complaint is granted.
On July 1, 2007 the infant plaintiff Sara Bendig (hereinafter Sara), who was then 14 yearsold, was playing tennis with her father, the plaintiff Arnold Bendig, at a tennis court located onthe grounds of Bethpage High School. Sara had played on this court about four times prior to thisdate. During the course of the game, Sara went to retrieve a ball and, as she went past the end ofthe net, she caught her thigh on the "fixed net winder handle," allegedly sustaining injuries.According to Sara, this handle or "crank" protruded slightly from the end of the net pole.
The plaintiffs commenced this action against the owner of the property, the Bethpage UnionFree School District (hereinafter the District) alleging, inter alia, that the District failed toproperly maintain the tennis court nets. The complaint also asserted a cause of action on behalfof Arnold Bendig to recover damages for negligent infliction of emotional distress. The Districtmoved for summary judgment dismissing the complaint, arguing, among other things, that Saraassumed the risks inherent in the sport and that, in any event, there was no defective condition.The Supreme Court denied the motion. We reverse.
The doctrine of primary assumption of risk provides that a voluntary participant in a sportingor recreational activity "consents to those commonly appreciated risks which are inherent in andarise out of the nature of the sport generally and flow from such participation" (Morgan vState of New York, 90 NY2d 471, 484 [1997]). "This includes those risks associated withthe construction of the playing surface and any open and obvious condition on it" (Welch vBoard of Educ. of City of N.Y., 272 AD2d 469 [2000] [emphasis added]; seeZiegelmeyer v United States Olympic Comm., [*2]7 NY3d893 [2006]; Sykes v County of Erie, 94 NY2d 912 [2000]; Maddox v City of NewYork, 66 NY2d 270 [1985]). "If the risks are . . . perfectly obvious to theplayer, he or she has consented to them and the property owner has discharged its duty of care bymaking the conditions as safe as they appear to be" (Brown v City of New York, 69AD3d 893, 893 [2010]; see Turcotte v Fell, 68 NY2d 432, 439 [1986]; Morales vCoram Materials Corp., 64 AD3d 756 [2009]). Nor is it "necessary to the application ofassumption of risk that the injured plaintiff have foreseen the exact manner in which his or herinjury occurred, so long as he or she is aware of the potential for injury of the mechanism fromwhich the injury results" (Maddox v City of New York, 66 NY2d at 278).
The District demonstrated its prima facie entitlement to judgment as a matter of law byestablishing that Sara assumed the risk by voluntarily playing tennis on the subject court despiteher awareness that the court had fixed net winder handles with which she could come intocontact during the course of her tennis game (see Mendoza v Village of Greenport, 52AD3d 788 [2008]; Mondelli v County of Nassau, 49 AD3d 826 [2008]; Casey vGarden City Park-New Hyde Park School Dist., 40 AD3d 901 [2007]; Marshall v City ofNew Rochelle, 15 AD3d 456 [2005]; Restaino v Yonkers Bd. of Educ., 13 AD3d432 [2004]; Dobert v State of New York, 8 AD3d 873 [2004]).
In opposition, the plaintiffs failed to raise a triable issue of fact as to whether the Districtunreasonably increased the risk of playing tennis on its court. In particular, the affidavit of theplaintiffs' expert failed to identify a violation of any specific safety standard which wasapplicable to the subject tennis court or otherwise establish that the fixed net winder handleswere defective (see Brown v City of New York, 69 AD3d 893 [2010]; Musante vOceanside Union Free School Dist., 63 AD3d 806 [2009]; cf. Morgan v State of NewYork, 90 NY2d 471 [1997]). Moreover, while the expert opined that the fixed net winderhandles were an "outdated design," "the mere fact that a defendant 'could feasibly have providedsafer conditions' is beside the point, where . . . the risk is open and obvious"(Simoneau v State of New York, 248 AD2d 865, 866-867 [1998], quoting Verro vNew York Racing Assn., 142 AD2d 396, 400 [1989] [citations omitted]).
The District also demonstrated its prima facie entitlement to judgment as a matter of lawdismissing the cause of action asserted on behalf of Arnold Bendig to recover damages fornegligent infliction of emotional distress (see Maracle v Curcio, 24 AD3d 1233 [2005];Perry v Valley Cottage Animal Hosp., 261 AD2d 522 [1999]; Lancellotti vHoward, 155 AD2d 588 [1989]; cf. DiMarco v Supermarkets Gen. Corp., 137 AD2d651 [1988]). In opposition, the plaintiffs failed to raise a triable issue of fact.
Accordingly, the District's motion for summary judgment dismissing the complaint shouldhave been granted (see generally Alvarez v Prospect Hosp., 68 NY2d 320 [1986]). Inview of this conclusion, it is unnecessary to reach the District's remaining contentions. Mastro,J.P., Santucci, Chambers and Roman, JJ., concur.