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Elie v. City of New York Slip Copy Defendant St. Louis Cardinals, LLC (sued herein as N.Y.Sup. 2009. St. Louis Cardinals, L.P.) moves for an order, pur- suant to CPLR 3212, granting it summary judgment Slip Copy2009 WL 2767116, 2009 N.Y. Slip Op. dismissing the complaint. 51862(U) Plaintiff commenced the instant action by filing a This opinion is uncorrected and will not be published summons and complaint on June 3, 2003. An amend- in the printed Official Reports. ed summons and verified complaint was served and filed on or about July 21, 2003. The amended verified Gerard Elie, Plaintiff, complaint alleges that on July 22, 2002, plaintiff was v. injured while in the spectator area of Keyspan Park in The City of New York, The City of New York De- Brooklyn, the home baseball stadium of defendant *2 partment of Parks and Recreation, Keyspan Park, Brooklyn Cyclones. The complaint asserts that an un- Brooklyn Cyclones, Brooklyn Baseball Co., LLC, named player of the New Jersey Cardinals (the visit- New Jersey Cardinals, Minor League Heroes, LP, ing team, and a subsidiary of movant), while either “John Doe” being the fictitious name of a player for warming up or “horsing around” before the scheduled the New Jersey Cardinals and St. Louis Cardinals, baseball game, propelled a baseball bat into the seats. L.P., Defendants. The subject bat struck and injured plaintiff. 20244/03 Plaintiff claims argues that this was an act tanta- Supreme Court, Kings County mount to negligence or recklessness that proximately caused the injury. As relevant to the instant motion, plaintiff asserts that the player was employed by Decided on August 19, 2009 movant, and as such, movant is liable for the negligence FN1 of its employee. Digest-Index Classification:Negligence--Assumption of Risk--Spectator Injured by Baseball Bat During The examination before trial of plaintiff occurred on Pregame Warmup May 20, 2005; movant now seeks summary judgment. In support of the instant motion, movant asserts APPEARANCES OF COUNSEL that it is entitled to summary judgment because plaintiff, a spectator of a baseball game occupying an un- The plaintiff was represented by: shielded area of Keyspan Park, assumed the risk of Bourhazos & Matarangas being struck by a loose baseball bat. Movant notes 111 Broadway, Suite 1801 plaintiff's examination before trial testimony, which NY NY 10006 indicates that plaintiff was sitting approximately ten 212-967-3322 feet from the subject player,FN2 observing the player The defendant was represented by: and other members of the New Jersey Cardinals Fabiani, Cohen & Hall LLP warming up. Plaintiff also testified that the warmup 570 Lexington Ave 4th floor activities included players swinging bats and hitting NY NY 10022 baseballs to other players. Movant claims that a spec- 212-644-4420 tator, who observes close players swinging baseball bats in an unshielded area of a baseball stadium yet OPINION OF THE COURT remains nearby, assumes the risk of being struck by a loose bat. Movant concludes that since plaintiff as- Mark I. Partnow, J. sumed the risk of his injury, it therefore did not breach a duty of care to plaintiff, and the complaint

Slip Copy (Table, Text in WESTLAW), Unreported Disposition (Cite as: Slip Copy) should thus be dismissed as against movant. ally and recklessly” threw the subject bat into the stands. The affidavit further states that the subject In opposition, plaintiff claims that the subject player player then admitted to Braune that he intentionally was horsing around when he propelled the bat into threw the bat into the stands. Plaintiff concludes that the spectator area. Plaintiff also claims that when he he did not assume the risk of an intentional act, and was struck by the bat, there was no indication (in therefore, the instant motion should be denied. contrast to batting practice or during the actual game) that loose bats would likely land in the spectator area. The supplemental response of movant states that the Instead, states plaintiff, other players were stretching subject player, subsequently identified as Joey Van- while the subject player horsed around with the sub- dever, has not been in movant's employ since April 7, ject bat. 2003--almost two months before plaintiff commenced the instant action. Movant further states that Plaintiff asserts that the authority cited by movant it has provided plaintiff with the last known address supports the mere proposition that a spectator as- of Joey Vandever and cannot produce him for exami- sumes only commonplace risks--such as, the risk of a nation before trial as he is not in movant's control. loose bat or ball reaching the stands during the game Moreover, movant asserts that the instant motion is or batting practice--associated with attending a base- properly supported by the examination before trial ball game. Plaintiff argues that, here, in contrast, it testimony of plaintiff, and as such, no additional affi- was not commonplace for the subject player to horse davit is required. around with the subject bat during no organized batting activity, either during the game or practice be- Movant also objects to the Barry Braune affidavit. forehand. Therefore, concludes plaintiff, movant has Movant states that this court requested supplemental failed to demonstrate prima facie entitlement to judg- replies on the limited issue of whether a spectator as- ment as a matter of law with respect to assumption of sumes the risk of being struck with loose baseball risk. equipment during warmups, and was not an invitation for an affidavit of an eyewitness. In any event, argues Plaintiff advances additional arguments in opposi- movant, the affidavit is suspect and a contrived at- tion. First, plaintiff asserts that the question of how tempt to create an issue of fact.FN3Lastly, movant the subject bat was propelled into the spectator area claims that its cited authority does in fact demon- (e.g. before the bat became loose, was the subject strate that a baseball spectator assumes the risk of player using the bat to stretch, hit baseballs, etc.) is a certain intentional activities. question of fact, requiring this court to deny the instant motion. Plaintiff also asserts that the examina- The court grants the motion and dismisses the com- tion before trial of the subject player is outstanding, plaint as against movant. Summary judgment is a and summary judgment should be denied on this ad- drastic remedy that deprives a litigant of his or her ditional ground. Lastly, plaintiff states that the instant day in court, and it should only be employed when motion should be denied on the ground *3 that it is there is no doubt as to the absence of triable issues supported only by an attorney affirmation and not an ( Kolivas v Kirchoff , 14 AD3d 493 [2005];see al- affidavit of a person with knowledge of the relevant so Andre v Pomeroy , 35 NY2d 361, 364 [1974]). facts. However, a motion for summary judgment will be granted if, upon all the papers and proof submitted, This court heard oral argument of the instant motion the cause of action or defense is established suffi- on May 26, 2009. After oral argument, the court re- ciently to warrant directing judgment in favor of any quested supplemental replies from plaintiff and party as a matter of law (CPLR 3212 [b]; Gilbert movant. Plaintiff's supplemental reply includes the Frank Corp. v Federal Ins. Co. , 70 NY2d 966, 967 affidavit of Barry Braune, a friend of plaintiff who [1988]; Zuckerman v City of New York , 49 NY2d 557, was sitting next to him at the time of the accident. 562 [1980]), and the party opposing the motion for The affidavit states that the subject player “intention- summary judgment fails to produce evidentiary proof

Slip Copy (Table, Text in WESTLAW), Unreported Disposition (Cite as: Slip Copy) in admissible form sufficient to establish the exis- contention that summary judgment should be denied tence of material issues of fact (Alvarez v Prospect because the subject player was “horsing around” and Hosp. , 68 NY2d 320, 324 [1986], citing Zuckerman , not engaged in batting practice when the subject bat 49 NY2d at 562;see alsoWinegrad v New York Univ. became loose implies that primary assumption of risk Med. Ctr. , 64 NY2d 851 [1985]). applies only during certain distinct times while attending a baseball game. This implication is false. In Under the doctrine of primary assumption of risk, as Pira v Sterling Equities, Inc. (16 AD3d 396 applied to spectators attending sporting events (see [2005],supra), the Appellate Division held that the e.g. Murphy v Steeplechase Amusement Co. , 250 NY injured plaintiff consented to being struck by a base- 479 [1929]; Akins v Glens Falls City School Dist. , 53 ball, intentionally thrown to the fans in the stands of NY2d 325 [1981]; Newcomb v Guptill Holding Corp. , Shea Stadium, during “pre-game warmup” (Id. at 31 AD3d 875 [2006]; Procopio v Town of Saugerties , 396). In his brief, plaintiff-appellant Giacinto V. Pira, 20 AD3d 860 [2005]; LaRocca v Pleasant Val. Little in an attempt to distinguish his case from Honohan v League , 15 AD3d 628 [2005]; Koenig v Town of Turrone (297 AD2d 705 [2002] [dismissing action of Huntington , 10 AD3d 632 [2004]),*4 “[a] spectator sports spectator injured during warmup activities]), at a sporting event is deemed to have consented to asserted that the intentional act of New York Mets those risks commonly appreciated which are inherent pitcher Dennis Cook-- throwing the subject ball to in and arise out of the nature of the event” (Cohen v fans, who did not catch it, allowing it to strike the Sterling Mets, L.P. , 17 Misc 3d 218, 219 plaintiff--did not constitute a warmup. The Appellate [2007],affd58 AD3d 791 [2009], citing Morgan v Division expressly disagreed ( Pira , 16 AD3d at 396). State of New York , 90 NY2d 471 [1997]; Cannavale v Thus, there is no merit to plaintiff's implication that City of New York , 257 AD2d 462 [1999]; see al- he did not assume the risk of being struck by a loose so Koenig v Town of Huntington , 10 AD3d 632 bat while neither the game nor batting practice pro- [2004] [bystander assumed risks entailed by volun- ceeded (see also Cohen , 17 Misc 3d 218 [plaintiff as- tary proximity to baseball game]). Movant is not an sumed risk of being struck by fan who dove for shirt “insurer[] of the safety of spectators who occupy un- launched into the stands between innings]; protected areas of the stadium” (Pira v Sterling cf. Demelio v Playmakers, Inc. , 63 AD3d 777 [2009] Equities, Inc. , 16 AD3d 396 [2005];see also Akins , 53 [risk of ricocheting baseballs presented by an un- NY2d at 329). The duty to protect baseball spectators padded metal pole in enclosed batting cage was not is “fulfilled by the providing of sufficient screening prima facie inherent risk of sport]).FN4 behind home plate, where the danger of being struck by a ball or bat is the greatest” ( Cohen , 17 Misc 3d at Moreover, and contrary to plaintiff's argument, 219, citing Akins , 53 NY2d at 331; Sparks v Sterling movant properly supported the instant motion for Doubleday Enters. , 300 AD2d 467 [2002]). Among summary judgment with the transcript of the exami- the dangers to which a baseball spectator has con- nation before trial of plaintiff ( Olan v Farrell Lines , sented to is the danger that a loose baseball bat will 64 NY2d 1092 [1985];see also Odi v Lifetouch, Inc. , strike a spectator and cause injury (see e.g.Marlowe v 35 AD3d 420 [2006]). Also, because movant has as- Rush-Henrietta Cent. School Dist. , 167 AD2d 820 serted that the subject player has not been in its em- [1990],affd78 NY2d 1096 [1991]). Here, plaintiff, a ploy since the instant action was commenced, movant seasoned spectator of baseball, assumed the risk of is not obliged to produce the subject player for *5 an many dangers, including the danger of being struck examination before trial (see e.g.Prappas v by a loose bat. Movant has thus established entitle- Papadatos , 38 AD3d 871, [2007]). Lastly, the affi- ment to judgment as a matter of law based upon the davit of Barry Braune, and the argument that the sub- doctrine of primary assumption of risk ( Pira , 16 ject player intentionally threw the bat into the stands, AD3d at 397, citing Morgan v State of New York , 90 may not be considered since it was first raised in NY2d 471 [1997]). plaintiff's supplemental reply papers (see e.g.Sanz v Discount Auto , 10 AD3d 395 [2004]). FN5 For these Plaintiff's arguments in opposition lack merit. The reasons, the motion is granted.

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tives” (Holmes v Gary Goldberg & Co., In sum, the instant motion of defendant St. Louis Inc. , 40 AD3d 1033 [2007]). Cardinals, LLC (sued herein as St. Louis Cardinals, L.P.) for summary judgment dismissing the com- Copr. (c) 2009, Secretary of State, State of New York plaint as against it is granted. The action is severed N.Y.Sup. 2009. against the remaining defendants and shall continue. Elie v City of New York

The foregoing constitutes the decision, order and Slip Copy judgment of this court. END OF DOCUMENT E N T E R,

J. S . C.

FOOTNOTES

FN1. As discussed infra, plaintiff also implies that movant would be liable for the reckless or intentional activities of the subject player.

FN2. Plaintiff also testified that he owned season tickets, and his seat was approximately fifteen feet from the third-base line.

FN3. The court notes that plaintiff's opposition asserts that the subject player negligent- ly lost control of the subject bat, but the supplemental reply asserts that the action was intentional and reckless.

FN4. 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.

FN5. 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 operat- ing 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 mo-