D'Angelo v. Board of Education of North Tonawanda City School District

Appellate Division of the Supreme Court of New York

D'Angelo v. Board of Education of North Tonawanda City School District

300 A.D.2d 1078, 752 N.Y.S.2d 579

Appellate Division of the Supreme Court of the State of New York·Decided December 30, 2002·Published·Cited by 2 cases

Opinion

—Appeal from an order of Supreme Court, Niagara County (Fricano, J.), entered November 28, 2001, which denied defendant’s motion seeking summary judgment dismissing the complaint.

It is hereby ordered that the order so appealed from be and the same hereby is unanimously affirmed without costs.

Memorandum: Supreme Court properly denied defendant’s motion seeking summary judgment dismissing the complaint. The infant plaintiff, a high school cheerleader, was injured during a cheerleading practice being held in the school’s foyer. Although defendant met its initial burden by establishing that the infant plaintiff “assumed the risks associated [with] this voluntary extracurricular sport” (Weber v Floyd School Dist., UFSD, 272 AD2d 396, 397; see generally Benitez v New York City Bd. of Educ., 73 NY2d 650, 658), we conclude that plaintiffs raised a triable issue of fact whether the infant plaintiff was exposed to “unreasonably increased risks of injury” (Sheehan v Hicksville Union Free School Dist., 229 AD2d 1026, 1026; see also Cody v Massapequa Union Free School Dist. No. 23, 227 AD2d 368, 369). Present — Pine, J.P., Wisner, Scudder, Kehoe and Burns, JJ.

Free access — add to your briefcase to read the full text and ask questions with AI

—Appeal from an order of Supreme Court, Niagara County (Fricano, J.), entered November 28, 2001, which denied defendant’s motion seeking summary judgment dismissing the complaint.

It is hereby ordered that the order so appealed from be and the same hereby is unanimously affirmed without costs.

Memorandum: Supreme Court properly denied defendant’s motion seeking summary judgment dismissing the complaint. The infant plaintiff, a high school cheerleader, was injured during a cheerleading practice being held in the school’s foyer. Although defendant met its initial burden by establishing that the infant plaintiff “assumed the risks associated [with] this voluntary extracurricular sport” (Weber v Floyd School Dist., UFSD, 272 AD2d 396, 397; see generally Benitez v New York City Bd. of Educ., 73 NY2d 650, 658), we conclude that plaintiffs raised a triable issue of fact whether the infant plaintiff was exposed to “unreasonably increased risks of injury” (Sheehan v Hicksville Union Free School Dist., 229 AD2d 1026, 1026; see also Cody v Massapequa Union Free School Dist. No. 23, 227 AD2d 368, 369). Present — Pine, J.P., Wisner, Scudder, Kehoe and Burns, JJ.

D'Angelo v. Board of Education of North Tonawanda City School District, 300 A.D.2d 1078, 752 N.Y.S.2d 579 (N.Y. Ct. App. 2002).

Pincite

300 A.D.2d 1078 (D'Angelo v. Board of Education of North Tonawanda City School District) — published by Counsel Stack Legal Research, free access to 12M+ legal documents.

Opinion

Related