Marescot v. St. Augustine's R. C. School

226 A.D.2d 507, 641 N.Y.S.2d 79, 1996 N.Y. App. Div. LEXIS 4420

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: April 15, 1996
• Status: Published

Opinion

In an action to recover damages for personal injuries, etc., the defendant Church of St. Augustine appeals from an order of the Supreme Court, Rockland County (Miller, J.), dated August 9, 1995, 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, the motion of the Church of St. Augustine is granted, and the complaint is dismissed insofar as asserted against it.

The record demonstrates that the plaintiff David Marescot, an experienced basketball player, assumed the risk of the injury which he sustained upon voluntarily participating in a basketball game at the appellant’s gymnasium (see, e.g., Reilly v Long Is. Jr. Soccer League, 216 AD2d 281; Greenberg v North Shore Cent. School Dist. No. 1, 209 AD2d 669; cf., Brown v City of Peekskill, 212 AD2d 658; Weithofer v Unique Racquetball & Health Clubs, 211 AD2d 783; Cassese v Ramapo Ice Rinks, 208 AD2d 488; see also, Benitez v New York City Bd. of Educ., 73 NY2d 650; Turcotte v Fell, 68 NY2d 432, 439; Maddox v City of New York, 66 NY2d 270, 277-278). Additionally, the injured plaintiff failed to establish that the appellant breached any duty of care in connection with the incident which caused his injury, or in any event, that his injury was proximately caused by any act or omission of the appellant (see, Greenberg v North Shore Cent. School Dist. No. 1, supra; Cassese v Ramapo Ice Rinks, supra). Thompson, J. P., Sullivan, Joy and Florio, JJ., concur.