Gilbert v. Lyndonville Central School District

Sep 28, 2001
Versions:286 A.D.2d 896
730 N.Y.S.2d 638
2001 N.Y. App. Div. LEXIS 8916

—Order unanimously affirmed without costs. Memorandum: Supreme Court properly denied the motion of defendant Lyndonville Central School District (Lyndonville) seeking summary judgment dismissing the complaint against it. Although Lyndonville established as a matter of law that plaintiff assumed the risks inherent in the game of volleyball by participating on Lyndonville’s varsity volleyball team, we conclude that plaintiff raised an issue of fact whether Lyndonville exposed her to “unassumed, concealed or unreasonably increased risks” by directing or allowing her to warm up in a hazardous location (Weller v Colleges of the Senecas, 217 AD2d 280, 283; see, Benitez v New York City Bd. ofEduc., 73 NY2d 650, 658). (Appeal from Order of Supreme Court, Orleans County, Punch, J. — Summary Judgment.) Present — Pine, J. P., Wisner, Hurl-butt, Kehoe and Gorski, JJ.