Auwarter v. Malverne Union Free School District

274 A.D.2d 528, 715 N.Y.S.2d 852, 2000 N.Y. App. Div. LEXIS 8316

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: July 31, 2000
• Status: Published

Opinions

—In an action to recover damages for personal injuries, etc., the defendant Malverne Union Free School District appeals, as limited by its brief, from so much of an order of the Supreme Court, Nassau County (Adams, J.), dated December 6, 1999, as denied its motion for summary judgment dismissing the complaint and all cross claims insofar as asserted against it, and the plaintiffs cross-appeal, as limited by their brief, from so much of the same order as denied their motion for leave to serve an amended and" supplemental complaint, and granted that branch of the cross motion of the defendant Big Toys Northeast, Inc., which was for summary judgment dismissing the complaint insofar as asserted against it.

Ordered that the order is modified, on the law, by deleting the provision thereof denying the motion of the defendant Malverne Union Free School District, and substituting therefor a provision granting that motion; as so modified, the order is affirmed insofar as appealed and cross-appealed from, with one bill of costs to the defendants payable by the plaintiffs.

The infant plaintiff was injured when he fell while playing on and around “jungle gym” type playground equipment. By engaging in a sport or recreational activity, a participant consents to those commonly appreciated risks which are inherent in and arise out of the nature of the sport generally and which flow from such participation (see, Morgan v State of New York, 90 NY2d 471, 484-486). We find that the infant plaintiff consented to all of the risks which were inherent in and flowed from his playing on the equipment.

Given the plaintiffs’ extended delay in moving to amend and supplement the complaint, and the lack of a reasonable excuse for the delay in seeking that relief, the Supreme Court providently exercised its discretion in denying the plaintiffs’ motion for that relief (see, Volpe v Good Samaritan Hosp., 213 AD2d 398).

The plaintiffs’ remaining contention is without merit. Bracken, J. P., Joy, Thompson and Feuerstein, JJ., concur.