Davis v. Kellenberg Memorial High School

Appellate Division of the Supreme Court of New York

Davis v. Kellenberg Memorial High School

284 A.D.2d 293, 725 N.Y.S.2d 588, 2001 N.Y. App. Div. LEXIS 5613

CourtAppellate Division of the Supreme Court of the State of New York

DecidedJune 4, 2001

StatusPublished

Cited by5 cases

This text of 284 A.D.2d 293 (Davis v. Kellenberg Memorial High School) is published on Counsel Stack Legal Research, covering Appellate Division of the Supreme Court of the State of New York primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Davis v. Kellenberg Memorial High School, 284 A.D.2d 293, 725 N.Y.S.2d 588, 2001 N.Y. App. Div. LEXIS 5613 (N.Y. Ct. App. 2001).

Pincite

Opinion

—In an action to recover damages for personal injuries, etc., the defendant appeals from an order of the Supreme Court, Nassau [294]*294County (Parga, J.), dated June 8, 2000, which denied its motion for summary judgment dismissing the complaint.

Ordered that the order is reversed, on the law, with costs, the motion is granted, and the complaint is dismissed.

The injured plaintiff was a student at the defendant high school. While waiting after school for his mother, he and some other students, who were standing on top of a concrete bench, began rocking the bench by shifting their weight. The injured plaintiff attempted to dismount the bench as it was rocking, and it toppled over, catching his foot and landing on top of it.

The defendant made a prima facie showing of its entitlement to judgment as a matter of law (see, Winegrad v New York Univ. Med. Ctr., 64 NY2d 851). The evidence submitted established that the injured plaintiff assumed the risk of injury inherent in his horseplay (see, Bierach v Nichols, 248 AD2d 916, 918; Kelly v Great Neck Union Free School Dist., 192 AD2d 696, 697). In opposition, the plaintiffs did not raise a triable issue of fact. Goldstein, J. P., McGinity, Schmidt and Smith, JJ., concur.

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—In an action to recover damages for personal injuries, etc., the defendant appeals from an order of the Supreme Court, Nassau [294]*294County (Parga, J.), dated June 8, 2000, which denied its motion for summary judgment dismissing the complaint.

Ordered that the order is reversed, on the law, with costs, the motion is granted, and the complaint is dismissed.

The injured plaintiff was a student at the defendant high school. While waiting after school for his mother, he and some other students, who were standing on top of a concrete bench, began rocking the bench by shifting their weight. The injured plaintiff attempted to dismount the bench as it was rocking, and it toppled over, catching his foot and landing on top of it.

The defendant made a prima facie showing of its entitlement to judgment as a matter of law (see, Winegrad v New York Univ. Med. Ctr., 64 NY2d 851). The evidence submitted established that the injured plaintiff assumed the risk of injury inherent in his horseplay (see, Bierach v Nichols, 248 AD2d 916, 918; Kelly v Great Neck Union Free School Dist., 192 AD2d 696, 697). In opposition, the plaintiffs did not raise a triable issue of fact. Goldstein, J. P., McGinity, Schmidt and Smith, JJ., concur.

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Bluebook (online)

284 A.D.2d 293, 725 N.Y.S.2d 588, 2001 N.Y. App. Div. LEXIS 5613, Counsel Stack Legal Research, https://law.counselstack.com/opinion/davis-v-kellenberg-memorial-high-school-nyappdiv-2001.

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