Philippou v Baldwin Union Free School Dist.
Annotate this CaseDecided on January 17, 2012
Supreme Court, Nassau County
Anthony C. Philippou, an infant, by his mother and guardian, TAMMY MADDALONI and TAMMY MADDALONI, individually, Plaintiffs,
against
Baldwin Union Free School District and LAWRENCE PUBLIC SCHOOLS, Defendants.
790/10
Nathaniel M. Swergold, Esq. - Attorneys for Plaintiffs
Ahmuty, Demers & McManus, Esqs. - Attorneys for Defendant, Baldwin UFSD
Congdon, Flaherty, O'Callaghan, Reid, Donlon, Travis & Fishlinger, Esqs. - Attorneys for Defendant, Lawrence Public Schools
Thomas Feinman, J.
The defendant, Lawrence Public School, (hereinafter referred to as "Lawrence"), moves for an order pursuant to CPLR §3212 granting the defendant summary judgment dismissing plaintiffs' complaint, and any and all cross-claims as and against the defendant. Lawrence submits a Memorandum of Law in support of its opposition. The defendant, Baldwin Union Free School District, (hereinafter referred to as "Baldwin"), moves for an order pursuant to CPLR §3212 granting the defendant, summary judgment pursuant to CPLR §3212 dismissing any and all cross-claims as and against Baldwin. The plaintiff cross-moves for an order pursuant to CPLR §2004 seeking an extension to respond to defendants' CPLR §3101(d) request for information concerning plaintiff's [*2]expert witness, permitting plaintiffs to rely on the annexed affidavit of their expert, Jerome E. Seckler, in opposition to the two separate motions for summary judgment, and submits opposition to the motion. The defendants submit reply affirmations.
The plaintiffs initiated this action for personal injuries sustained on March 17, 2009 by the infant plaintiff, Anthony C. Philippou, (hereinafter referred to as "Philippou"), then 13 years old. Philippou, a member of Baldwin's middle school's wrestling team was injured in the course of a dual meet. The plaintiff alleges that, essentially, the two mats, which had been taped together, separated when plaintiff's hand and arm hit the wood floor following an attempted take-down by plaintiff's opponent.
The defendants, in their moving papers, have met their burden on their respective summary judgment motion's by demonstrating prima facie entitlement to summary judgment. The defendants have established that the infant plaintiff, an eighth grader, was involved in the sport of wrestling, a contact sport, and was aware of the possibility of injuries. It is well established that voluntary participant in sporting events have consented, by their participation, to injuries which are apparent or reasonably foreseeable consequences of the participation. (Turcotta v. Fell, 68 NY2d 432). When the risk of a sporting activity is fully comprehended and apparent, the participant has consented to them and the defendant has performed its duty. (Id.) An infant plaintiff, a wrestler, was held to have assumed the risk of a blow to the jaw in a take-down move, (Edelson v. Uniondale UFSD, 219 AD2d 614), and to have assumed the risk of being thrown down to the floor by a teammate during practice when half his body landed on the mat and the other half landed on the hardwood floor surrounding the mat. (Egger v. St. Dominic High School, 238 AD2d 542).
The plaintiff, by way of cross-motion and opposition, seeks permission to rely on the affidavit of plaintiff's expert, albeit, the report being first submitted in opposition to a motion for summary judgment, and therefore untimely. It is well established that the plaintiff's expert affidavit submitted for the first time in opposition to a motion for summary judgment must be rejected. (King v. Gregruss Mgt Corp., 57 AD3d 851; Wartski v. CW Post Campus of Long Island University, 63 AD3d 916; Stolarski v. DeSimone, 83 AD3d 1042). Acknowledging such authority, plaintiff submits that pursuant to CPLR §2004, which authorizes the Court to extend the time fixed by statute, rule or order, plaintiff should be granted leave to circumvent the established authority and grant plaintiff an extension, and therefore, allow plaintiff leave to rely on plaintiff's expert affidavit in opposition to the defendants' motion. However, this Court is constrained by the well established authority, and such law is clear that this Court must reject the affidavit of an expert offered for the first time in opposition to a motion for summary judgment. In any event, this is not the proper forum in which to challenge the authority of the Appellate Court. Additionally, plaintiff's excuse offered for the untimely delay in disclosing and serving plaintiff's expert exchange, to wit, waiting for the co-defendant to identify the type of tape used to hold down the mats, is unavailing as plaintiff admits, no claim was made that the tape itself was defective, and plaintiff claims the mats were improperly taped together. Therefore, this Court rejects the untimely submission of plaintiff's expert affidavit.
However, plaintiff does not rely solely on the affidavit of plaintiff's expert in opposing the [*3]defendants' motion for summary judgment. Plaintiff, in opposition to the motions for summary judgment, refers to the pretrial testimony, deposition transcripts, and photographs to support plaintiff's claim that the mat sections, which were torn and worn, were not properly taped together, and should not have separated. Plaintiff essentially argues that plaintiff did not assume the risk that the mats would be improperly taped and therefore separate during a wrestling match. While the defendants argue otherwise, and point to inconsistencies made by the infant plaintiff and plaintiff's mother, an issue of fact has been sufficiently raised as to whether the risk that the taped mats would separate during a match is an inherent and foreseeable risk to the sport of wrestling, and whether the mat sections were improperly taped. The court's function on this motion for summary judgment is issue finding rather than issue determination. (Sullivan v. Twentieth Century Fox Film Corp., 165 NYS2d 498). Since summary judgment is a drastic remedy, it should not be granted where there is any doubt as to the existence of a triable issue. (Rotuba Extruders v. Ceppos, 413 NYS2d 141). Thus, when the existence of an issue of fact is even arguable or debatable, summary judgment should be denied. (Stone v. Goodson, 200 NYS2d 627. The role of the court is to determine if bonafide issues of fact exists, and not to resolve issues of credibility. (Gaither v. Saga Corp., 203 AD2d 239; Black v. Chittenden, 69 NY2d 665). In reviewing a motion for summary judgment, the court evaluates the evidence in the most favorable light to the party opposing the motion. (Sullivan v. Twentieth Century Fox Film Corp., supra).
In light of the foregoing, the defendants' respective motions for summary judgment dismissing plaintiffs' complaint are hereby dismissed.
E N T E R :
________________________________
J.S.C.
Dated: January 17, 2012
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