Snow v Uniondale Union Free School Dist.

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Snow v Uniondale Union Free School Dist. 2012 NY Slip Op 31636(U) June 11, 2012 Supreme Court, Nassau County Docket Number: 11530/10 Judge: Thomas P. Phelan Republished from New York State Unified Court System's E-Courts Service. Search E-Courts (http://www.nycourts.gov/ecourts) for any additional information on this case. This opinion is uncorrected and not selected for official publication. ....... .................. ......... . . . . . . . ............ ........ ....... ..... [* 1] SHORT FORM ORDER SUPREME COURT- STATE OF NEW YORK Present: HON. THOMAS P. PHELAN. Justice. TRIAL/IAS PART 2 NASSAU COUNTY NISHOBA SNOW ORIGINAL RETURN DATE: 02/15/12 Plaintiff, SUBMISSION DATE: 04/10/12 Index No. 11530/10 -against- UNIONDALE UNION FREE SCHOOL DISTRICT, MOTION SEQUENCE #001 Defendant. The following papers read on this motion: Notice of Motion......... AffIrmation in Opposition..... . Reply.........................;............................................. 3 Memorandum of Law.............. ............ Defendant moves for summary judgment dismissing the complaint against it. Plaintiff opposes the motion. The standards for summar judgment are well settled. A court may grant summary part judgment where there is no genuine issue of a material fact and the moving Prospect Hasp. , 68 , therefore , a court' NY2d 320 (1986)). Thus, when faced with a summar judgment motion (Alvarez , entitled to judgment as a matter of law determnation as to the matter; its task is to determne whether or not there exists a genuine Journal-News 211 AD2d 626 (2d Dept. 1995)). task is not to weigh the evidence or to make the ultimate trth of the issue for tral (Miller a prima The burden on the par moving for summary judgment is to demonstrate facie entitlement to judgment as a matter of law by tendering sufficient evidence to Gervasio 81 NY2d (Ayotte demonstrate the absence of any material issue of fact [* 2] RE: SNOW v. UNONDALE UNON FREE SCHOOL DISTRICT Page 2 part opposing 1062 (1993)). If such a showing is made , the burden shifts to the the summar judgment motion to produce evidentiar proof in admssible form sufficient to establish the existence of material issues of fact which require 68 NY2d at 324). resolution at tral (Alvarez v. Prospect Hosp., This action was brought by plaintiff to recover damages alleged to have been paricipating in sustained when she allegedly fell on an unprotected area while dale High School , located at 933 cheerleading practice in the auditorium of Union 2009. Goodrch Street , Uniondale, New York , on or about November 12 and Defendant claims that plaintiff voluntarily paricipated in a sporting activity assumption of risk. that plaintiff s claim is bared by the doctrne of H testimony, as well as In support of the motion , defendant submits plaintiffs 50the 50- H testimony of her grandfather and the transcripts of her deposition and the deposition transcript of Erica An Boden , who testified on behalf of defendant.8) , p. Plaintiff testified that she had been a cheerleader since August 2008 (Ex. Cthe , p. 16). On the day of . and began performng stunts in August 2009 (Ex. E accident , plaintiff was practicing in the auditorium in front of the stage on thin had done many times before (Ex. C , p. 36). caret as she , which she described as Plaintiff was practicing a stut known as the one man follows: "The one man has to deal with your back spotter being underneath you. my So basically I am on her shoulders , but I am also being helped by my side and the as she is lifted into the air , front spotters " (Id. , p. 39). Plaintiff explained that spotters still have both of her feet. As 1 was up in According to plaintiff, the accident happened as follows: " t feel balanced , so I asked them extension , which is above my bases ' heads , I didn' to bring me down and as they were bringing me down I unlocked my legs and I , plaintiff lost my balance " (Id. , p. 40). When asked why she unlocked her legs responded that she "just didn' t feel stable , so I guess I was concentrating more on ). Plaintiff acknowledged that she coming down instead of locking my legs " (Id. , p. 25). understood the safety precaution of locking the legs (Ex. E. Erica An Boden testified that she is employed by defendant as a reading teacher is the club advisor for cheerleading and was present on the day of the accident (Ex. , pp. 4 , 5 , 16). In supervising their pupils , a school must exercise the duty of care [* 3] RE: Page 3 SNOW v. UNONDALE UNON FREE SCHOOL DISTRICT that " a parent of ordinary prudence would observe in comparable circumstances 281 NY 54 58 (1939)). However , schools are not insurers of safety and cannot reasonably be expected to supervise every movement of its City of New York 84 NY2d 44 49 (1994)). (Hoose students v. Drumm, (Mirand v. Furhermore , the alleged lack of supervision must be the proximate cause of the injur to impose liability on a school distrct for (Lopez negligent supervision J). Therefore Freeport Union Free School Dist. 734 NYS2d 97, 98 (2d Dept. 2001 liability will not be found "where an accident occurs in so short a span of time that (Swan even the most intense supervision could not have prevented it" Brookhaven, 821 NYS2d 265 267 (2d Dept. 2006); v. Town of Lopez 734 NYS2d at 98). Counsel for defendant submits that negligent supervision was not the proximate a made cause of the accident , which was sudden and spontaneous. Defendant has (Testa prima facie showing that it did not fail to properly supervise plaintiff East Meadow Union Free School Dist., 92 AD3d 940 941 (2d Dept. 2012)). Defendant submits that plaintiff was aware that an injury could occur while performng the stut and that plaintiff unlocked her legs in contravention of the by her advisors. Moreover , it is submitted that plaintiffs instrctions given to her have failed to prove any defective condition. Plaintiff retorts that she was "practicing in the auditorium on a hardwood floor " (Snow covered by caret. At that time , there was no padding on the flooring Aff. 4). Counsel for plaintiff argues that an issue of fact exists as to whether plaintiff was exposed to an increased risk. Defendant submits the affidavit of Donna Roenbeck cheerleading consultant. Ms. Roenbeck avers that: , a cheerleader coach and " on The performance of cheerleading stunts such as the " one man , indoor/outdoor soft yielding surfaces such as grass , rubberized floor carpeting or a rubberized track is common practice and standard procedure in cheerleading and is proper under the guidelines of the American Association for Cheerleading Coaches and Advisers (AACCA). It is also proper under the guidelines of the National Federation of High Schools which regulate all high school sports [* 4] RE: Page 4 SNOW v. UNONDALE UNON FREE SCHOOL DISTRICT (~7). Generally, those who voluntarily participate in sports activities consent paricipation , to injury-causing events which are reasonably foreseeable v. (Bruno , by their Town of consequences of their participation (citations omitted)" 248 AD2d 576 577 (2d Dept. 1998)). Here , defendant established its prima facie entitlement to judgment as a matter of law by demonstrating that plaintiff assumed the risk of injur by voluntarily participating in the activity of Hempstead, (Testa v. East Meadow Union cheerleading with knowledge of its inherent risks Free School Dist. 92 AD3d at 941). In. opposition , plaintiff failed to raise a trable issue of fact. Plaintiff failed to show that the condition of the auditorium floor was a proximate cause of 272 AD2d 396 (2d plaintiffs injur (Weber v. William Floyd School Dist., UFSD, Dept. 2000)). Based upon all of the foregoing, defendant' s complaint is dismissed. motion is granted and plaintiffs This decision constitutes the order of the court. Dated: f)JN 1/, DId HON THOMS P. PHE MAS P.- PHEL t;c Attornevs of Record Duffy & Duffy, Esqs. Attention: Fran Torres , Esq. Attorneys for Plaintiff 1370 RX Plaza West Tower, 13th Floor Uniondale , NY 11556- 1370 Congdon, Flahert, O' Callaghan, Reid , Donlon , Travis & Fishlinger , Esqs. Attention: Henr C. Dieudonne , Jr. , Esq. Attorneys for Defendant 333 Earle Ovington Boulevard , Suite 502 Uniondale , NY 11553- 3625 ENTERED JUN 13 201? NAS$AU COUNTY S OFfiCE COUNTY CLERK' xxx

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