Sutfin v. Scheuer , 543 N.Y.S.2d 379 ( 1989 )

OPINION OF THE COURT

Memorandum.

The order of the Appellate Division should be affirmed, with costs.

Defendants, a 14-year-old boy and a 15-year-old boy, were playing hardball catch at a distance of 25 feet on a city street. According to plaintiff, also 15 and an experienced baseball player, he approached defendants, both his friends, during their game, greeted them and conversed with each of them as they continued throwing the ball back and forth. Plaintiff then moved a short distance behind defendant Bauer and began talking with two or three other friends. Thereafter, Bauer threw a ball that eluded defendant Scheuer who retrieved the ball and, from a distance of 75 feet, made an errant throw that struck plaintiff in the mouth and injured him.

By placing himself in the line of an ongoing game of catch between his friends, plaintiff put himself in danger of being struck by a misthrown ball. Thus, the Appellate Division properly held that in the circumstances plaintiff was owed no duty by defendants.

Chief Judge Wachtler and Judges Simons, Kaye, Alexander, Titone, Hancock, Jr., and Bellacosa concur.

On review of submissions pursuant to section 500.4 of the Rules of the Court of Appeals (22 NYCRR 500.4), order affirmed, with costs, in a memorandum.