Woo v. United Nations Intl. Sch.

Woo v United Nations Intl. Sch. (2016 NY Slip Op 01597)

Woo v United Nations Intl. Sch.

2016 NY Slip Op 01597

Decided on March 8, 2016

Appellate Division, First Department

Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.

This opinion is uncorrected and subject to revision before publication in the Official Reports.

Decided on March 8, 2016
Friedman, J.P., Acosta, Renwick, Richter, JJ.

421 105541/08

[*1]Willis Woo, Plaintiff-Appellant,

v

United Nations International School, et al., Defendants-Respondents, St. John's University, et al., Defendants.

James T. Moriarty, New York, for appellant.

Wade Clark Mulcahy, New York (Brett L. Kuller of counsel), for United Nations International School, Kenneth Wrye, and Harry Muniz, respondents.

Law Office of James J. Toomey, New York (Evy L. Kazansky of counsel), for Alex DeRosa, respondent.

Order, Supreme Court, New York County (Barbara Jaffe, J.), entered July 15, 2013, which, inter alia, granted the motion of defendants United Nations International School, Kenneth Wrye and Harry Muniz (collectively, UNIS), and the cross motion of defendant Alex DeRosa, for summary judgment dismissing the complaint as against them, unanimously affirmed, without costs.

Summary judgment was properly granted in this action where plaintiff was injured when he was struck in the face by a baseball thrown by DeRosa, since plaintiff assumed the risk of injuries resulting from DeRosa's thrown ball during a pre-game warm-up (see Bukowski v Clarkson Univ., 19 NY3d 353 [2012]; Godwin v Russi, 62 AD3d 945 [2d Dept 2009]). Plaintiff's claim that UNIS failed to provide proper safety equipment is unavailing (see Bukowski at 356-357; Hawley v Binghamton Mets Baseball Club, 262 AD2d 729, 732 [3d Dept 1999]). While protective gear may have aided plaintiff, he was not acting as a catcher at the time of injury, but was warming up for a game. Plaintiff had practiced catching balls with and without a catcher's mask and knew that he could get injured playing baseball. Furthermore, the risk of getting struck by a baseball is "so obvious," that defendants had no duty to provide such equipment to the 18-year-old plaintiff (Hawley at 732; compare Merino v Board of Educ. of City of N.Y., 59 AD3d 248 [1st Dept 2009]).

Since plaintiff's recovery is precluded by the fact that he assumed the risks inherent in playing baseball, he may not recover on a theory of negligent supervision. Such remains a viable [*2]theory "only insofar as the risk upon which the action is based has not been assumed" (Roberts v Boys & Girls Republic, Inc., 51 AD3d 246, 251 [1st Dept 2008], affd 10 NY3d 889 [2008]).

Plaintiff's remaining contentions are unavailing.

THIS CONSTITUTES THE DECISION AND ORDER

OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.

ENTERED: MARCH 8, 2016

DEPUTY CLERK