Rispoli v Long Beach Union Free School Dist.

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Rispoli v Long Beach Union Free School Dist. 2012 NY Slip Op 31585(U) June 4, 2012 Supreme Court, Nassau County Docket Number: 4163/10 Judge: Robert A. Bruno 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. VL)' [* 1] SHORT FORM ORDER SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF NASSAU PRESENT: HON. ROBERT A. BRUNO, J. ---------- J( STEVEN RISPOLI , an infant over the age of 14 by his father and natural guardian , RONALD RISPOLI , and RONALD RISPOLI , individually, TRIAL/IAS PART 20 INDEX No. : 4163/10 Motion Date: 04/05/12 Plaintiff Motion Sequence: 001 -against - LONG BEACH UNION FREE SCHOOL DISTRICT LONG ISLAND WRESTLING OFFICIALS ASSOCIATION , INC. , and RICHARD PETRACCA DECISION & ORDER Defendants. ---------------- J( Papers Numbered Sequence #001 Notice of Motion................................................................................................ Memorandum of Law in Support of Motion ..................................................... Affirmation in Opposition............. ..................................................................... 3 Memorandum of Law in Opposition to Motion ................................................. 4 Reply Memorandum of Law in Further Support of Motion .............................. 5 Upon the foregoing papers , defendants , Long Island Wrestling Officials Association Inc. and Richard Petracca , application pursuant to CPLR 3212 is determined as set forth below. The plaintiffs in this action seek to recover damages for personal injuries sustained by the infant-plaintiff, Steven Rispoli , while paricipating in a wrestling match at Long Beach Union Free School District (the " School" ) on December 6, 2008. Plaintiffs allege that the defendants failed to properly and adequately supervise and control the match. Additionally, they allege that the referee supervising the match was improperly trained , supervised , and prepared as well as negligent , grossly negligent and reckless in failing to make certain calls. Specifically, they fault the referee , Richard Petracca , for failing to call a potentially dangerous position which allegedly would have halted the match in time to prevent the infant- plaintiffs injur. LIWOA" ) and The defendants , Long Island Wrestling Officials Association , Inc. Referee Petracca, make the instant application seeking summary judgment dismissing the Page 1 [* 2] Rispoli v Long Beach Union Free School District IndeJ( No. : 4163/10 plaintiffs ' complaint based upon the infant- plaintiff s primar assumption of the risk. On a motion for sumar judgment the facts must be viewed ' in the light most Ortiz Restani Constr. Corp. 18 NY3d 499 , quoting Vega favorable to the non-moving par.' " Varsity Holdings, LLC 18 NY3d 335. Summar judgment is a drastic remedy, to be granted only where the moving pary has "tender( ed) sufficient evidence to demonstrate the absence of any material issues of fact. . . and then only if, upon the moving par' s meeting of this burden the non-moving par fails to establish the eJ(istence of material issues of fact which require a Prospect Hasp. , 68 Alvarez Restani Constr. Corp. , supra quoting trial of the action. Vega prima NY2d 320 (internal quotation marks omitted). " The moving party s (fjailure to make (a) , regardless showing (of entitlement to summar judgment) requires a denial of the motion facie Alvarez Restani Constr. Corp., supra quoting of the sufficiency of the opposing papers. Vega at p. 324. Prospect Hasp., supra, It is well settled that one who voluntarily participates in a sporting activity is deemed have consented to accept the risk of injuries that are known , apparent or reasonably foreseeable County of Suffolk 43 A. 3d 456. The doctrine of assumption of the risk is a form of measurement of a defendant's duty to a voluntar v. City of New York 29 AD3d 649. Awareness of the Manoly paricipant in a sporting activity. risk assumed must be assessed against the background , skil and eJ(perience of the particular consequences of the paricipation. See v. Simmons plaintiff. School Dist. v. Calouri , 82 AD. Saugerties Cent. School Dist. Morales 3d 1407; Beacon City v. 44 AD. 3d 724. The scope of a plaintiff s assumption of risk , and the consequent limitation upon a defendant' s duty may var depending upon a particular plaintiffs capacity to appreciate the risks of an activity. However , application of the doctrine must be loosely circumscribed so as not to seriously undermine and displace the principles of comparative 14 N. Y3d 392. v. Lake George Cent. School Dist. Trupia causation. The doctrine of assumption of risk will not serve as a bar to liability if the risk is La Salle Inst. 45 AD. 3d 556. In unassumed , concealed or uneasonably Ribaudo increased. v. assessing whether a defendant has violated a duty of care in the conteJ(t of an injur sustained during a sport or a game , the trier of fact must determine whether the defendant created a unique Convey condition over and above the usual dangers that are inherent in the sport. 271 A. D.2d 154 (citations and internal quotation School Dist., v. City of Rye marks omitted). Further , a paricipant in a sport wil not be deemed to have assumed the risks of reckless or intentional conduct. Morgan v. State of New York 90 N. Y.2d 471. sporting event by a coparicipant and by the proprietor of the facility in which it takes place must be evaluated by Accordingly, the analysis of care owed to plaintiff in the considering the risks plaintiff assumed when he elected to paricipate in the event and how those 1 The action against the School has been discontinued. Page 2 [* 3] Rispoli v. Long Beach UFSD IndeJ( No. : 4163/10 v. State of New York, supra., assumed risks qualified defendants ' duty to him Morgan v. Fell 68 N. Y.2d 432 (internal quotation marks omitted). Turcotte quoting On the date in question , the infant plaintiff, Steven , was 15 years old and a member of the school' s varsity wrestling team. He was participating in the " Battle at the Beach" wrestling tourament hosted by Long Beach High School and was injured during the tournament while wrestling against a member of the New Rochelle High School varsity wrestling team. The injur occured at the star of the third period , Steven was in the bottom position on all fours and his opponent who was stading wrapped his legs around his torso. Steven stood up with his opponent having "put his legs in. " That is , his opponent was hanging on him with his well as his legs wrapped around him and his legs tucked between Steven s crotch. After Steven took a few steps , he fell to the matt and fractured his humerus. ars that he stopped the , he did so because of same move three times during the match before Steven got hurt. However the potential danger to Steven s opponent of being flung over Steven s head. He testified that in the bottom wrestler standing up with the top wrestler hanging on him , it is this position always the top wrestler s safety that is of concern. Referee Petracca, defendant , admitted at his eJ(amination- before- trial He furher testified that each time he stopped the match , he waited two seconds before blowing the whistle to see whether Steven s opponent would " improve his position" but he did not do so. Referee Petracca also testified that when Steven sustained his injur, he had waited approJ(imately two seconds to see if Steven s opponent would " improve his position" by moving his feet toward the mat and he was about to stop the match for the potentially dangerous hold. However , Steven s opponent stared to improve his position negating the need to do so. Referee Petracca checked off "potentially dangerous hold" under the category labeled " description of circumstances leading to the injury " when he completed the accident report. Raymond Adams , the head wrestling coach at the school testified that the risk of a high school student being hurt while wrestling when he is tripped or falls to the mat is inherent in the sport. Roy Scott , a representative who testified on behalf of LIWOA , testified likewise. The record demonstrates that the infant- plaintiff, Steven , was aware of, appreciated and Hochhauser 65 AD3d 663 Oceanside Union Free School Dist. 63 AD3d 806 (2 Dept 2009), Musante Dept 2009); Lindenhurst Union Free School Dist. 243 AD2d 558 Walcott Iv den. 13 NY3d 704 (2009); Dept 1997). Nevertheless , the plaintiffs allege that Steven did not assume the risk of voluntarily assumed the risk of injur while wrestling. See, Farrell negligent refereeing which ultimately caused his injury. At his deposition , before fallng, he Steven testified that walked forward and attempted to move out of bounds because the referee failed to make a call. He also testified that his fall was caused by his opponent's weight on his back Page 3 "... [* 4] - .. Rispoli v. Long Beach UFSD IndeJ( No. : 4163/10 ' conflicting contentions in the light most In the instant matter , while viewing the parties Streiter v. Kix McBride, LLP 63 AD.3d 895; Stukas v. (Pearson , 168 favorable to plaintiff Arties ' Automatic Transmission Co. Dino v. Marine Midland Bank, NA. AD. 3d 18; remains a triable question of AD. 2d 610), the record supports plaintiffs contention that there uneasonably increased Referee Petracca fact precluding sumary judgment. Whether infant-plaintiffs risk of fact. See Zuckerman the failing to make the proper call remains a question for the trier City of New York, 49 N. Y.2d 557. of injur by v. All matters not decided herein are denied. This constitutes the Decision and Order of this Cour. Dated: June 4 , 2012 EN T E R: Mineola, New York Robert A. Bruno , J. IHTE.RID JUN 07 2012 COUtY ClMTV CtIAn F:\DECISIONS 2012\RSPOLI v LONG BEACH UFSC. motion I - 4- 12. wpd Page 4

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