Neu v. Heim Middle School

Appellate Division of the Supreme Court of New York

Neu v. Heim Middle School

262 A.D.2d 1040, 691 N.Y.S.2d 818, 1999 N.Y. App. Div. LEXIS 7270

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

DecidedJune 18, 1999

StatusPublished

This text of 262 A.D.2d 1040 (Neu v. Heim Middle 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

Neu v. Heim Middle School, 262 A.D.2d 1040, 691 N.Y.S.2d 818, 1999 N.Y. App. Div. LEXIS 7270 (N.Y. Ct. App. 1999).

Pincite

Opinion

—Order unanimously affirmed without costs. Memorandum: Supreme Court properly denied defendants’ motion for summary judgment dismissing the complaint. Triable issues of fact exist whether plaintiff Eric Neu assumed the risks involved in participating in his school’s extracurricular wrestling program, as measured against the background of his skill and experience (see, Benitez v New York City Bd. of Educ., 73 NY2d 650, 657).

We note, however, that the court’s statement that defendant coach “had more than one wrestling match going on at a time, and his attention was diverted elsewhere” at the time of the accident improperly resolves a disputed issue of fact that could impact the cause of action for negligent supervision. It is well settled that the function of a court on summary judgment is issue finding, not issue determination (see, Powell v Tarantino Foods, 234 AD2d 989). (Appeal from Order of Supreme Court, Erie County, Gorski, J. — Summary Judgment.) Present — Den-man, P. J., Pine, Wisner, Hurlbutt and Callahan, JJ.

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—Order unanimously affirmed without costs. Memorandum: Supreme Court properly denied defendants’ motion for summary judgment dismissing the complaint. Triable issues of fact exist whether plaintiff Eric Neu assumed the risks involved in participating in his school’s extracurricular wrestling program, as measured against the background of his skill and experience (see, Benitez v New York City Bd. of Educ., 73 NY2d 650, 657).

We note, however, that the court’s statement that defendant coach “had more than one wrestling match going on at a time, and his attention was diverted elsewhere” at the time of the accident improperly resolves a disputed issue of fact that could impact the cause of action for negligent supervision. It is well settled that the function of a court on summary judgment is issue finding, not issue determination (see, Powell v Tarantino Foods, 234 AD2d 989). (Appeal from Order of Supreme Court, Erie County, Gorski, J. — Summary Judgment.) Present — Den-man, P. J., Pine, Wisner, Hurlbutt and Callahan, JJ.

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Bluebook (online)

262 A.D.2d 1040, 691 N.Y.S.2d 818, 1999 N.Y. App. Div. LEXIS 7270, Counsel Stack Legal Research, https://law.counselstack.com/opinion/neu-v-heim-middle-school-nyappdiv-1999.

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