Upon the following papers numbered 1 to 56 read on this motion for summary judgment: Notice of Motion/Order to Show Cause and supporting papers 1-43; Notice of Cross Motion and supporting papers_; Answering Affidavits and supporting papers 44-56; Replying Affidavits and supporting papers_; Other_; it is, ORDERED that the motion by defendants for summary judgment dismissing the complaint is denied.Plaintiff Sean Laird commenced this action on behalf of his daughter, infant plaintiff Alexandra Laird (“Alexandra”), to recover damages for injuries she allegedly sustained on August 26, 2014, when she was hit in the face by a softball while practicing with defendant Long Island Sudden Impact, Inc., a fast-pitch softball team, at the Phelps Lane Park in North Babylon. At the time of the accident, Alexandra was participating in a fast-paced throwing and catching drill under the supervision of her coach, defendant William Havdoglous. Plaintiffs allege, among other things, that Havdoglous was negligent in failing to supervise the softball practice in a safe manner and allowing a dangerous condition to exist. Plaintiffs further allege that co-defendants Long Island Sudden Impact, New York State Amateur Softball Association, Inc., and ASA/USA Softball were negligent, among other things, in exposing Alexandra to unreasonable and unnecessary risks. At the time of the accident, Havdoglous was employed as a coach for defendant Long Island Sudden Impact.Defendants now move for summary judgment in their favor on the ground that Alexandra assumed the risk of injury when she participated in the activity, and that the practice was no different than any other normal softball practice. In support of the motion, defendants submit copies of the pleadings and transcripts of the parties’ deposition testimony, an affidavit of Craig Cress, and a copy of the ASA/USA Softball “Safety Awareness Guide.” Plaintiffs oppose the motion, arguing that triable issues of fact exist as to the circumstances of the subject accident, whether Alexandra assumed the risk of injury, and whether Havdoglous unreasonably increased that risk. Plaintiffs’ submissions in opposition include expert affidavits of Richard Norman and Stephen Pampinella, and photographs allegedly depicting the sun glare on the ballfield.At her examination before trial, Alexandra testified that she played on both her school softball teams and outside competitive softball teams since middle school. She testified that at the time of the accident, she was a member of the Sudden Impact fast-pitch softball team, on which she played the positions of pitcher, second base, and outfield. Alexandra testified that while her team regularly practiced at one particular field on Phelps Lane, on the incident date her team practiced on a field upon which they had never played. She testified that she arrived for practice at 6:20 p.m., when the team had just begun a four corner drill, and that she had to go to third base because it had only three players in line, while the other bases already had 4 players lined up. She testified that when the practice began, the sun was slightly above the backstop, and that the sun glare was blinding. Alexandra testified that she and the other players at the third base line commented on how hard it was to see, yet there was no break called for any of the players to get sunglasses. She testified that her father offered her sunglasses, but that she did not take them because she believed the coach would be angry since he did not like team members to talk to their parents during practices or games. She testified further that a few throws prior to her accident, another player had a hard time seeing and was hit in the shoulder with the ball, and that Havdoglous demonstrated how to use their gloves to block the sun. Alexandra testified that the accident happened when Cheyenne, another player, threw the ball toward her. According to her deposition testimony, Alexandra saw Cheyenne’s hand go up, but she did not see anything after that, so she tried to turn out of the way and got hit directly in the side of the face.At his deposition, Sean Laird, Alexandra’s father, testified that he was present at the time of the accident, and that there was a very bright sun glare. He testified that Alexandra was at third base for the drill, and that she and two other players complained about the sun glare as they struggled to see from their position. Laird testified that he offered his sunglasses to Alexandra, but that she waved him off. He testified that he believed Alexandra waved him off because she did not want to disrupt the practice and get in trouble with her coach. He testified that approximately two or three minutes prior to the accident, another player at third base was hit with a ball and he saw the coach demonstrate how to block the sun with a glove. Laird testified that immediately before the ball hit Alexandra, he witnessed her put up her glove and that she “never even reacted to the ball coming towards her.” According to Laird, the ball never made contact with Alexandra’s glove, but hit her directly in the cheekKayla Henry-Caltabelotta (“Kayla”) testified at her deposition that she accompanied Alexandra to practice that day and warmed up with her immediately before they participated in the four corner drill. She testified that at the time the weather was clear and the sun was just setting. She testified that prior to the accident, the team was engaged in a four corner drill which consists of “the players make four short lines at all four bases, then proceed to quickly throw and catch a single ball around the bases in one direction. The direction of the ball is typically changed at some point during the drill.” She testified that at the time of the accident she was standing in line at second base and Alexandra was standing in line at third base as the ball was being thrown clockwise around the bases. Kayla testified some of the players had a hard time seeing the ball because of the sun glare and held their gloves up in front of their faces to try and block the sun, as directed by the coach. She also testified that sunglasses were not a requirement for the team, and that she did not wear them while playing for the team. Kayla testified that prior to Alexandra’s accident, another player at third base was hit on the arm by the ball.Havdoglous testified on behalf of all the named defendants. He testified that he has coached fast-pitch softball for over twenty years and attended coaching clinics in which he was taught how to conduct drills, but that the clinics did not cover player safety other than to make sure that the players’ gear was good, and that the players stay hydrated in hot weather. He testified that he has run hundreds of softball practices and has seen players get hit by balls over 30 times, but has not seen any of them hit in the face by the ball. Havdoglous testified that he never required players to wear sunglasses during games or practice, and that sunglasses are not required to by the NYS ASA. He also stated that many players do not like to wear them because they have trouble seeing the ball, and that the only way he knew to block the sun was by raising one’s glove, which is what he told his players to do if there was sun glare. He testified that he knew sun glare can increase the risk of being hit by a ball, but that he has never changed a drill because of sun glare.Havdoglous further testified that Alexandra was a good team player who followed directions. He testified that at the time of the incident, he was running fast pace four corner drills in which he estimated the ball was being thrown around the bases approximately 50-55 miles per hour, with 1 to 3 seconds between throws. He also testified that the drill could be done without the use of the bases, as long as the players were standing in a square; that there was no reason why he could not have moved the drill to alleviate the effects of the sun; and that the direction the players were throwing the ball, either clockwise or counter clockwise could be switched. Havdoglous testified that prior to the incident date, he had never set up the drill with the players positioned in a such a way that one of the lines was directly facing the sun, nor had he seen a line of players set up for this drill facing directly at the sun. He testified that during the drill prior to the incident he heard Mr. Laird ask Alexandra whether she wanted sunglasses, to which she replied that she would get them on the next round, but he did not hear anyone complain about the sun glare and that if they did complain, he might have moved the drill location or positions.The proponent of a summary judgment motion must make a prima facie showing of entitlement to judgment as a matter of law, tendering evidentiary proof in admissible form sufficient to eliminate any material issues of fact from the case (Alvarez v. Prospect Hosp., 68 NY2d 320, 508 NYS2d 923 [1986]; Friends of Animals v. Associated Fur Mfrs., 46 NY2d 1065, 416 NYS2d 790 [1979]). The proponent has the initial burden of proving entitlement to summary judgment (Winegrad v. New York Univ. Med. Ctr., 64 NY2d 851, 487 NYS2d 316 [1985]). Failure to make such a showing requires denial of the motion, regardless of the sufficiency of the opposing papers (id.). Once a prima facie showing is made, the burden shifts to the opponent of the motion who, in order to defeat summary judgment, must proffer evidence in admissible form sufficient to require a trial of any issue of fact or demonstrate an acceptable excuse for his failure to do so (Zuckerman v. City of New York, 49 NY2d 557, 427 NYS2d 595 [1980]; Joseph P. Day Realty Corp. v. Aeroxon Prods., 148 AD2d 499, 538 NYS2d 843 [2d Dept 1989]). The opponent must assemble, lay bare and reveal his proof in order to establish that the matters set forth in his pleading are real and capable of being established at a trial (Castro v. Liberty Bus Co., 79 AD2d 1014, 435 NYS2d 340 [2d Dept 1981]). Summary judgment shall be granted when the cause of action or defense is established sufficiently to warrant the court as a matter of law in directing judgment in favor of any party (CPLR 3212 [b]).A voluntary participant in a sporting or recreational activity consents to commonly-appreciated risks which are inherent in and arise out of the nature of such activity generally, and which flow from participation (see Morgan v. State of New York, 90 NY2d 471, 662 NYS2d 421 [1997]; Rueckert v. Cohen, 116 AD3d 1026, 983 NYS2d 894 [2d Dept 2014]; Reidy v. Raman, 85 AD3d 892, 924 NYS2d 581 [2d Dept 2011]; Leslie v. Splish Splash at Adventureland, 1 AD3d 320, 766 NYS2d 599 [2d Dept 2003]). Under the primary assumption of risk doctrine, a person who engages in an athletic or recreational activity will be barred from recovering damages for injuries sustained during such activity if it is established that the injury-causing conduct, event or condition was known, apparent or reasonably foreseeable (see Morgan v. State of New York, supra; Benitez v. New York City Bd. of Educ., 73 NY2d 650, 543 NYS2d 29 [1989]; Turcotte v. Fell, 68 NY2D 432, 510 NYS2d 49 [1986]; Maddox v. City of New York, 66 NY2d 270, 496 NYS2d 726 [1985]; Sarvia v. Makkos of Brooklyn, 264 AD2d 576, 694 NYS2d 393 [1st Dept 1999]). The plaintiff need not foresee the exact manner in which his or her injury occurred, “so long as he or she is aware of the potential for the injury of the mechanism from which the injury results” (Maddox v. City of New York, 66 NY2d 270, 496 NYS2d 726 [1985]). When assessing the risks assumed by a plaintiff and the duty of care owed by the owner or operator of the recreational facility, the court must consider the skill and experience of the particular plaintiff, as well as the nature of the defendant’s conduct (see Morgan v. State of New York, supra; Benitez v. New York City Bd. of Educ., supra; Maddox v. City of New York, supra; see also Fenty v. Seven Meadows Farms, Inc., 108 AD3d 588, 969 NYS2d 506 [2d Dept 2013]; Weinberger v. Solomon Schechter Sch. of Westchester, 102 AD3d 675, 961 NYS2d 178 [2d Dept 2013]).However, the primary assumption of risk doctrine is not an absolute defense to liability, but a measure of the duty of care owed by the defendant (see Custodi v. Town of Amherst, 20 NY3d 83, 957 NYS2d 268 [2012]; Turcotte v. Fell, supra; Taylor v. Massapequa Intl. Little League, 261 AD2d 396, 689 NYS2d 523 [2d Dept 1999]; see also Trupia v. Lake George Cent. School Dist., 14 NY3d 392, 901 NYS2d 127 [2010]). The owner or operator of a sporting venue has a duty to exercise due care to ensure that the conditions of participating in that activity are as safe as they appear to be. A negligence claim will not be dismissed if the defendant’s action or inaction created a dangerous condition over and above the usual dangers inherent in the sport or activity (see Morgan v. State of New York, 90 NY2d 471, 662 NYS2d 421 [1997]; Turcotte v. Fell, supra). If the risks of the activity are fully comprehended or perfectly obvious, the plaintiff has consented to them and defendant has performed its duty (see Morgan v. State of New York, supra).Here, defendants failed to meet their prima facie burden on the motion by eliminating triable issues of fact as to whether the coach-directed four-corner drill, in which Havdoglous positioned Alexandra in the direct line of a blinding sun glare, created a dangerous condition over and above the usual dangers inherent in the sport (see Muniz v. Warwick School Dist., 293 AD2d 724 [2d Dept 2002]; Greenburg v. Peekskill City School Dist., 255 AD2d 487, 680 NYS2d 622 [2d Dept 1998]; Warren v. Town of Hempstead, 246 AD2d 536, 667 NYS2d 389 [2d Dept 1998]). The testimony revealed that the blinding sun glare compromised both Alexandra and the other players’ ability to see the ball as it was pitched toward them. Additionally, defendants’ own submissions include conflicting testimony by Alexandra, Kayla, and Havdoglous as to whether the players complained about their inability to see the balls pitched at them because of intense sun glare, and whether another player was hit by a fast ball prior to infant plaintiff’s accident. Such testimony raises significant triable issues of fact and credibility which may not be resolved on a summary judgment motion (see Gordan v. Honig, 40 AD3d 925, 837 NYS2d 197 [2d Dept 2007]; Ahr v. Karolewski, 48 AD3d 719, 853 NYS2d 172 [2d Dept 2008]; Kolivas v. Kirchoff, 14 AD3d 493, 787 NYS2d 392 [2d Dept 2005]).Accordingly, defendants’ motion for summary judgment dismissing the complaint is denied.Dated: February 4 2019_FINAL DISPOSITION X NON-FINAL DISPOSITION
