Elie v City of New York

[*1] Elie v City of New York 2009 NY Slip Op 51862(U) [24 Misc 3d 1243(A)] Decided on August 19, 2009 Supreme Court, Kings County Partnow, J. Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. This opinion is uncorrected and will not be published in the printed Official Reports.

Decided on August 19, 2009
Supreme Court, Kings County

Gerard Elie, Plaintiff,

against

The City of New York, The City of New York Department of Parks and Recreation, Keyspan Park, Brooklyn Cyclones, Brooklyn Baseball Co., LLC, New Jersey Cardinals, Minor League Heroes, LP, "John Doe" being the fictitious name of a player for the New Jersey Cardinals and St. Louis Cardinals, L.P., Defendants.



20244/03



The plaintiff was represented by:

Bourhazos & Matarangas

111 Broadway, Suite 1801

NY NY 10006

212-967-3322

The defendant was represented by:

Fabiani, Cohen & Hall LLP

570 Lexington Ave 4th floor

NY NY 10022

212-644-4420

Mark I. Partnow, J.

Defendant St. Louis Cardinals, LLC (sued herein as St. Louis Cardinals, L.P.) moves for an order, pursuant to CPLR 3212, granting it summary judgment dismissing the complaint.

Plaintiff commenced the instant action by filing a summons and complaint on June 3, 2003. An amended summons and verified complaint was served and filed on or about July 21, 2003. The amended verified complaint alleges that on July 22, 2002, plaintiff was injured while in the spectator area of Keyspan Park in Brooklyn, the home baseball stadium of defendant [*2]Brooklyn Cyclones. The complaint asserts that an unnamed player of the New Jersey Cardinals (the visiting team, and a subsidiary of movant), while either warming up or "horsing around" before the scheduled baseball game, propelled a baseball bat into the seats. The subject bat struck and injured plaintiff.

Plaintiff claims argues that this was an act tantamount to negligence or recklessness that proximately caused the injury. As relevant to the instant motion, plaintiff asserts that the player was employed by movant, and as such, movant is liable for the negligence [FN1] of its employee.

The examination before trial of plaintiff occurred on May 20, 2005; movant now seeks summary judgment. In support of the instant motion, movant asserts that it is entitled to summary judgment because plaintiff, a spectator of a baseball game occupying an unshielded area of Keyspan Park, assumed the risk of being struck by a loose baseball bat. Movant notes plaintiff's examination before trial testimony, which indicates that plaintiff was sitting approximately ten feet from the subject player,[FN2] observing the player and other members of the New Jersey Cardinals warming up. Plaintiff also testified that the warmup activities included players swinging bats and hitting baseballs to other players. Movant claims that a spectator, who observes close players swinging baseball bats in an unshielded area of a baseball stadium yet remains nearby, assumes the risk of being struck by a loose bat. Movant concludes that since plaintiff assumed the risk of his injury, it therefore did not breach a duty of care to plaintiff, and the complaint should thus be dismissed as against movant.

In opposition, plaintiff claims that the subject player was horsing around when he propelled the bat into the spectator area. Plaintiff also claims that when he was struck by the bat, there was no indication (in contrast to batting practice or during the actual game) that loose bats would likely land in the spectator area. Instead, states plaintiff, other players were stretching while the subject player horsed around with the subject bat.

Plaintiff asserts that the authority cited by movant supports the mere proposition that a spectator assumes only commonplace risks—such as, the risk of a loose bat or ball reaching the stands during the game or batting practice—associated with attending a baseball game. Plaintiff argues that, here, in contrast, it was not commonplace for the subject player to horse around with the subject bat during no organized batting activity, either during the game or practice beforehand. Therefore, concludes plaintiff, movant has failed to demonstrate prima facie entitlement to judgment as a matter of law with respect to assumption of risk.

Plaintiff advances additional arguments in opposition. First, plaintiff asserts that the question of how the subject bat was propelled into the spectator area (e.g. before the bat became loose, was the subject player using the bat to stretch, hit baseballs, etc.) is a question of fact, requiring this court to deny the instant motion. Plaintiff also asserts that the examination before trial of the subject player is outstanding, and summary judgment should be denied on this additional ground. Lastly, plaintiff states that the instant motion should be denied on the ground [*3]that it is supported only by an attorney affirmation and not an affidavit of a person with knowledge of the relevant facts.

This court heard oral argument of the instant motion on May 26, 2009. After oral argument, the court requested supplemental replies from plaintiff and movant. Plaintiff's supplemental reply includes the affidavit of Barry Braune, a friend of plaintiff who was sitting next to him at the time of the accident. The affidavit states that the subject player "intentionally and recklessly" threw the subject bat into the stands. The affidavit further states that the subject player then admitted to Braune that he intentionally threw the bat into the stands. Plaintiff concludes that he did not assume the risk of an intentional act, and therefore, the instant motion should be denied.

The supplemental response of movant states that the subject player, subsequently identified as Joey Vandever, has not been in movant's employ since April 7, 2003—almost two months before plaintiff commenced the instant action. Movant further states that it has provided plaintiff with the last known address of Joey Vandever and cannot produce him for examination before trial as he is not in movant's control. Moreover, movant asserts that the instant motion is properly supported by the examination before trial testimony of plaintiff, and as such, no additional affidavit is required.

Movant also objects to the Barry Braune affidavit. Movant states that this court requested supplemental replies on the limited issue of whether a spectator assumes the risk of being struck with loose baseball equipment during warmups, and was not an invitation for an affidavit of an eyewitness. In any event, argues movant, the affidavit is suspect and a contrived attempt to create an issue of fact.[FN3] Lastly, movant claims that its cited authority does in fact demonstrate that a baseball spectator assumes the risk of certain intentional activities.

The court grants the motion and dismisses the complaint as against movant. Summary judgment is a drastic remedy that deprives a litigant of his or her day in court, and it should only be employed when there is no doubt as to the absence of triable issues (Kolivas v Kirchoff, 14 AD3d 493 [2005]; see also Andre v Pomeroy, 35 NY2d 361, 364 [1974]). However, a motion for summary judgment will be granted if, upon all the papers and proof submitted, the cause of action or defense is established sufficiently to warrant directing judgment in favor of any party as a matter of law (CPLR 3212 [b]; Gilbert Frank Corp. v Federal Ins. Co., 70 NY2d 966, 967 [1988]; Zuckerman v City of New York, 49 NY2d 557, 562 [1980]), and the party opposing the motion for summary judgment fails to produce evidentiary proof in admissible form sufficient to establish the existence of material issues of fact (Alvarez v Prospect Hosp., 68 NY2d 320, 324 [1986], citing Zuckerman, 49 NY2d at 562; see also Winegrad v New York Univ. Med. Ctr., 64 NY2d 851 [1985]).

Under the doctrine of primary assumption of risk, as applied to spectators attending sporting events (see e.g. Murphy v Steeplechase Amusement Co., 250 NY 479 [1929]; Akins v Glens Falls City School Dist., 53 NY2d 325 [1981]; Newcomb v Guptill Holding Corp., 31 AD3d 875 [2006]; Procopio v Town of Saugerties, 20 AD3d 860 [2005]; LaRocca v Pleasant Val. Little League, 15 AD3d 628 [2005]; Koenig v Town of Huntington, 10 AD3d 632 [2004]), [*4]"[a] spectator at a sporting event is deemed to have consented to those risks commonly appreciated which are inherent in and arise out of the nature of the event" (Cohen v Sterling Mets, L.P., 17 Misc 3d 218, 219 [2007], affd 58 AD3d 791 [2009], citing Morgan v State of New York, 90 NY2d 471 [1997]; Cannavale v City of New York, 257 AD2d 462 [1999]; see also Koenig v Town of Huntington, 10 AD3d 632 [2004] [bystander assumed risks entailed by voluntary proximity to baseball game]). Movant is not an "insurer[] of the safety of spectators who occupy unprotected areas of the stadium" (Pira v Sterling Equities, Inc., 16 AD3d 396 [2005]; see also Akins, 53 NY2d at 329). The duty to protect baseball spectators is "fulfilled by the providing of sufficient screening behind home plate, where the danger of being struck by a ball or bat is the greatest" (Cohen, 17 Misc 3d at 219, citing Akins, 53 NY2d at 331; Sparks v Sterling Doubleday Enters., 300 AD2d 467 [2002]). Among the dangers to which a baseball spectator has consented to is the danger that a loose baseball bat will strike a spectator and cause injury (see e.g. Marlowe v Rush-Henrietta Cent. School Dist., 167 AD2d 820 [1990], affd 78 NY2d 1096 [1991]). Here, plaintiff, a seasoned spectator of baseball, assumed the risk of many dangers, including the danger of being struck by a loose bat. Movant has thus established entitlement to judgment as a matter of law based upon the doctrine of primary assumption of risk (Pira, 16 AD3d at 397, citing Morgan v State of New York, 90 NY2d 471 [1997]).

Plaintiff's arguments in opposition lack merit. The contention that summary judgment should be denied because the subject player was "horsing around" and not engaged in batting practice when the subject bat became loose implies that primary assumption of risk applies only during certain distinct times while attending a baseball game. This implication is false. In Pira v Sterling Equities, Inc. (16 AD3d 396 [2005], supra), the Appellate Division held that the injured plaintiff consented to being struck by a baseball, intentionally thrown to the fans in the stands of Shea Stadium, during "pre-game warmup" (Id. at 396). In his brief, plaintiff-appellant Giacinto V. Pira, in an attempt to distinguish his case from Honohan v Turrone (297 AD2d 705 [2002] [dismissing action of sports spectator injured during warmup activities]), asserted that the intentional act of New York Mets pitcher Dennis Cook—throwing the subject ball to fans, who did not catch it, allowing it to strike the plaintiff—did not constitute a warmup. The Appellate Division expressly disagreed (Pira, 16 AD3d at 396). Thus, there is no merit to plaintiff's implication that he did not assume the risk of being struck by a loose bat while neither the game nor batting practice proceeded (see also Cohen, 17 Misc 3d 218 [plaintiff assumed risk of being struck by fan who dove for shirt launched into the stands between innings]; cf. Demelio v Playmakers, Inc., 63 AD3d 777 [2009] [risk of ricocheting baseballs presented by an unpadded metal pole in enclosed batting cage was not prima facie inherent risk of sport]).[FN4]

Moreover, and contrary to plaintiff's argument, movant properly supported the instant motion for summary judgment with the transcript of the examination before trial of plaintiff (Olan v Farrell Lines, 64 NY2d 1092 [1985]; see also Odi v Lifetouch, Inc., 35 AD3d 420 [2006]). Also, because movant has asserted that the subject player has not been in its employ since the instant action was commenced, movant is not obliged to produce the subject player for [*5]an examination before trial (see e.g. Prappas v Papadatos, 38 AD3d 871, [2007]). Lastly, the affidavit of Barry Braune, and the argument that the subject player intentionally threw the bat into the stands, may not be considered since it was first raised in plaintiff's supplemental reply papers (see e.g. Sanz v Discount Auto, 10 AD3d 395 [2004]).[FN5] For these reasons, the motion is granted.

In sum, the instant motion of defendant St. Louis Cardinals, LLC (sued herein as St. Louis Cardinals, L.P.) for summary judgment dismissing the complaint as against it is granted. The action is severed against the remaining defendants and shall continue.

The foregoing constitutes the decision, order and judgment of this court.

E N T E R,

J. S . C. Footnotes

Footnote 1: As discussed infra, plaintiff also implies that movant would be liable for the reckless or intentional activities of the subject player.

Footnote 2: Plaintiff also testified that he owned season tickets, and his seat was approximately fifteen feet from the third-base line.

Footnote 3: The court notes that plaintiff's opposition asserts that the subject player negligently lost control of the subject bat, but the supplemental reply asserts that the action was intentional and reckless.

Footnote 4: The decision and order in Pira also seems to undercut plaintiff's argument, raised in the supplemental reply, that he has a viable claim because the subject player intentionally tossed the subject bat toward a second player.

Footnote 5: In any event, movant would not be liable to plaintiff for the intentional act of the subject player. Assuming that propelling a baseball bat into or near spectator stands does not further movant's business of operating a baseball team (cf. N.X. v Cabrini Med. Ctr., 97 NY2d 247, 251 [2002]), "vicarious liability does not arise from acts that are committed for the employee's personal motives" (Holmes v Gary Goldberg & Co., Inc., 40 AD3d 1033 [2007]).