Anderson v. Lindenhurst Union Free School District ( 1995 )

—In an action to recover damages for personal injuries, etc., the defendant appeals, as limited by its brief, from so much of an interlocutory judgment of the Supreme Court, Suffolk County (Tanenbaum, J.), entered June 30, 1994, as, after a jury trial, is in favor of the plaintiff and against it on the issue of liability.

Ordered that the interlocutory judgment is affirmed insofar as appealed from, with costs.

Assumption of the risk is not an absolute defense, but rather, "generally [creates] a question of fact for a jury” (Maddox v City of New York, 66 NY2d 270, 279; see, Benitez v New York City Bd. of Educ., 73 NY2d 650, 657; Turcotte v Fell, 68 NY2d 432, 439; Baker v Briarcliff School Dist., 205 AD2d 652, 655; Lamey v Foley, 188 AD2d 157,164). Contrary to the defendant’s contentions, the extent to which, if any, the plaintiff assumed the risk of the injury she sustained was a question of fact which was properly submitted to the jury (cf., Benitez v New York City Bd. of Educ., supra; Baker v Briarcliff School Dist., supra, at 655).

We have reviewed the defendant’s remaining contentions and find them to be without merit. Balletta, J. P., Thompson, Joy and Goldstein, JJ., concur.