Ruben v. Jewish Center of Greater Buffalo, Inc.

116 A.D.2d 1016, 498 N.Y.S.2d 633, 1986 N.Y. App. Div. LEXIS 51796

Opinion

Order unanimously reversed, on the law, with costs, and defendant Mooney’s motion granted. Memorandum: Defendant Mooney is entitled to summary judgment dismissing the complaint. Plaintiff commenced this personal injury action against Mooney and the Jewish Center of Greater Buffalo after he sustained an injury to his eye when struck by a racquetball propelled by Mooney. The inaccurate return of the ball by Mooney does not constitute negligence (McGee v Board of Educ., 16 AD2d 99, 102-103, appeal dismissed 12 NY2d 1100). Upon our examination of the pleadings, affidavits and EBT transcript, we conclude that plaintiff assumed the known inherent risks associated with the sport of racquetball (see, Dillard v Little League Baseball, 55 AD2d 477, Iv denied 42 NY2d 801; McGee v Board of Educ., supra), and that defendant’s conduct did not enhance those risks (see, Arnold v Schmeiser, 34 AD2d 568). The enactment of CPLR article 14-A placed no greater burden on a defendant to establish the defense of assumption of risk than was present prior to the amendment (see, Maddox v City of New York, 66 NY2d 270). (Appeal from order of Supreme Court, Erie County, Flaherty, J. — summary judgment.) Present — Dillon, P. J., Denman, Green, O’Donnell and Schnepp, JJ.