UNDER "ASSUMPTION OF THE RISK" SCHOOL WINS SUMMARY JUDGMENT AGAINST INJURED CHEERLEADER

Court: Supreme Court, Appellate Division, Second Department, New York

Case: Tiffany Testa v. East Meadow Union Free School District

Date: Feb. 28, 2012

From: New York attorney Gary E. Rosenberg

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In an action to recover damages for personal injuries, etc., the defendant East Meadow Union Free School District appeals from an order of the Supreme Court, Nassau County (Murphy, J.), entered March 11, 2011, which denied its motion for summary judgment dismissing the complaint insofar as asserted against it.

ORDERED that the order is reversed, on the law, with costs, and the motion of the defendant East Meadow Union Free School District for summary judgment dismissing the complaint insofar as asserted against it is granted.

The plaintiffs commenced this action to recover damages for personal injuries allegedly sustained by the infant plaintiff when she fell while performing a cheerleading stunt, which she had performed numerous times in the past. The defendant East Meadow Union Free School District (hereinafter the defendant) established its prima facie entitlement to judgment as a matter of law based on the defense of primary assumption of risk by demonstrating that the infant plaintiff assumed the risk of injury by voluntarily engaging in the activity of cheerleading with knowledge of its inherent risks (see Lomonico v. Massapequa Pub. Schools, 84 A.D.3d 1033, 923 N.Y.S.2d 631; DiGiose v. Bellmore-Merrick Cent. High School Dist., 50 A.D.3d 623, 855 N.Y.S.2d 199; Rendine v. St. John's Univ., 289 A.D.2d 465, 735 N.Y.S.2d 173; Weber v. William Floyd School Dist., UFSD, 272 A.D.2d 396, 707 N.Y.S.2d 231; Fisher v. Syosset Cent. School Dist., 264 A.D.2d 438, 694 N.Y.S.2d 691). The defendant also made a prima facie showing that it did not fail to properly supervise the infant plaintiff (see Lomonico v. Massapequa Pub. Schools, 84 A.D.3d 1033, 923 N.Y.S.2d 631).

In opposition, the plaintiffs failed to raise a triable issue of fact. The opinion of the plaintiffs' expert, submitted in opposition to the motion, was insufficient to raise a triable issue of fact, as it was not in admissible form (see CPLR 2106; Doumanis v. Conzo, 265 A.D.2d 296, 696 N.Y.S.2d 201; see also Moore v. 3 Phase Equestrian Ctr., Inc., 83 A.D.3d 677, 922 N.Y.S.2d 98; Hegy v. Coller, 262 A.D.2d 606, 692 N.Y.S.2d 463), and no excuse was provided for the failure to tender the evidence in admissible form (see generally Moffett v. Gerardi, 75 A.D.3d 496, 498, 904 N.Y.S.2d 757).

Accordingly, the defendant's motion for summary judgment dismissing the complaint insofar as asserted against it should have been granted.

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