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

Dec 30, 2002
Versions:300 A.D.2d 1078
752 N.Y.S.2d 579

—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.