Upon the following papers numbered 1 to 18 read on this motion for summary judgment: Notice of Motion and supporting papers, 1-10; Answering Affidavits and supporting papers, 11-14; Replying Affidavits and supporting papers, 15-16; and Memorandum of Law in opposition to motion, 17-18, it is, ORDERED that the motion by defendant for summary judgment dismissing plaintiffs’ complaint is denied. On November 9, 2006, plaintiff, who at the time was a fifth-grade student attending defendant St. Patrick’s Church at West Neck, Suffolk County, was injured when he fell while playing touch football in the parking lot during recess. Plaintiff alleges that defendant negligently failed to supervise plaintiff and was negligent in maintaining the subject premises, allowing a dangerous condition to exist. Specifically, plaintiff alleges in his bill of that the accident occurred on a paved parking area located outside the school building and that the dangerous condition consisted of the installation and placement of Belgium blocks upon certain portions of that area, where students were permitted to play touch football and to participate in other sports. Defendant now moves for summary judgment dismissing plaintiff’s complaint on the grounds that plaintiff was unable to identify the cause of his fall and that he assumed the risk of injury when he participated in the activity. Defendant’s submissions in support of its motion include copies of the pleadings, transcripts of the deposition testimony of the parties and photographs of the area where the accident occurred. Plaintiff opposes the motion, arguing that the circumstantial evidence combined with direct evidence permits the reasonable inference that plaintiff tripped over the Belgium blocks. Plaintiff also argues that a 10-year old child cannot assume the risk of participating in a sport where the risks are unreasonably increased. In opposition, plaintiff submits photographs of the subject area and a copy of the accident report. At his examination before trial, plaintiff testified that at the time of the incident, he was playing touch football in the parking lot of the school during recess. He testified that he played touch football in the parking lot almost every day during recess that fall prior to the accident. When plaintiff was asked if he tripped over a Belgium block and fall to the ground, he answered, “I do not recall. I remember feeling something hit my foot and tripping.” When asked what his foot hit and what he tripped on, he testified, “I couldn’t be sure what exactly I tripped on.” He further testified that it could have been a Belgium block, but he “could not be positive.” He testified that he was running to catch a pass, and that he was looking over his right shoulder when he tripped and his knee hit a Belgium block. When asked again if he recalled what his foot struck, he stated, “I couldn’t be sure to determine what it was my foot struck.” At her examination before trial, Diane Abrams, who was employed as a teacher by defendant at the time of the accident, testified that she was on lunch duty when plaintiff was injured. She testified that there are about 80 to 120 children in the parking lot during recess with one certified teacher supervising the students along with two to four volunteer parents. She testified that the students were permitted to play football during recess and that Belgium blocks are located on the side of the area where they generally play. On a motion for summary judgment, the movant bears the initial burden and must tender evidence sufficient to eliminate all material issues of fact (see Winegrad v. New York Univ. Med. Ctr., 64 NY2d 851, 487 NYS2d 316 [1985]). Once the movant meets this burden, the burden shifts to the opposing party to demonstrate that there are material issues of fact, however, mere conclusions and unsubstantiated allegations are insufficient to raise any triable issues of fact (see Zuckerman v. City of New York, 49 NY2d 557, 427 NYS2d 595 [1980]; Perez v. Grace Episcopal Church, 6 AD3d 596, 774 NYS2d 785 [2d Dept 2004]). The court’s function is to determine whether issues of fact exist, not to resolve issues of fact or to determine matters of credibility; therefore, in determining the motion for summary judgment, the facts alleged by the opposing party and all inferences that may be drawn are to be accepted as true (see Roth v. Barreto, 289 AD2d 557, 735 NYS2d 197 [2d Dept 2001]; O’Neill v. Town of Fishkill, 134 AD2d 487, 521 NYS2d 272 [2d Dept 1987]). Schools are under a duty to adequately supervise the students in their charge and will be held liable for foreseeable injuries proximately related to the absence of adequate supervision (see Mirand v. City of New York 84 NY2d 44, 614 NYS2d 372 [1994]; Swan v. Town of Brookhaven, 32 AD3d 1012, 821 NYS2d 265 [2d Dept 2006]). While schools are not insurers of safety, they are obligated to exercise such care of their students as a parent of ordinary prudence would observe in similar circumstances (see Mirand v. City of New York, supra; Swan v. Town of Brookhaven, supra). Nonetheless, they cannot reasonably be expected continuously to supervise and control all movements and activities of students (see Rant v. Locust Val. High School, 123 AD3d 686, 997 NYS2d 695 [2d Dept 2014]; O’Brien v. Sayville Union Free Sch. Dist., 87 AD3d 569, 928 NYS2d 85 [2d Dept 2011]). Further, it is well settled that by engaging in a sport or recreational activity, a participant consents “to those commonly appreciated risks which are inherent in and arise out of the nature of the sport [or activity] and flow from such participation” (Morgan v. State of New York, 90 NY2d 471, 484-486, 662 NYS2d 421 [1997]; see Anand v. Kapoor, 15 NY3d 946, 917 NYS2d 86 [2010]; Fithian v. Sag Harbor Union Free Sch. Dist., 54 AD3d 719, 864 NYS2d 456 [2d Dept 2008]; Mendoza v. Village of Greenport, 52 AD3d 788, 861 NYS2d 738 [2d Dept 2008]; Joseph v. New York Racing Assn., 28 AD3d 105, 809 NYS2d 526 [2d Dept 2006]). The primary assumption of risk doctrine does not confer an absolute defense to liability but serves to measure of the duty of care owed by the defendant (Turcotte v. Fell, 68 NY2d 432, 439, 510 NYS2d 49 [1986]; Taylor v. Massapequa Intl. Little League, 261 AD2d 396, 397, 689 NYS2d 523 [2d Dept 1999]). Under the doctrine, a plaintiff will be barred from recovering damages for injuries sustained during a voluntary athletic or recreational 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; Maddox v. City of New York, 66 NY2d 270, 496 NYS2d 726 [1985]). Participants in sports or recreational activities, however, “are not deemed to have assumed risks resulting from the reckless or intentional conduct of others, or risks that are concealed or unreasonably enhanced” (Custodi v. Town of Amherst, 20 NY3d 83, 88 [2012]; see Morgan v. State of New York, supra; Mussara v. Mega Funworks, Inc., 100 AD3d 185, 952 NYS2d 568 [2d Dept 2012]). On the current record, defendant has failed to establish a prima facie entitlement to judgment as a matter of law, as triable issues of fact exist as to whether the accident in which plaintiff was injured was foreseeable and whether defendant provided adequate supervision (see Doxtader v. Middle Country Cent. School Dist. at Centereach, 81 AD3d 685, 916 NYS2d 215 [2d Dept 2011]; Musante v. Oceanside Union Free Sch. Dist., 63 AD3d 806, 881 NYS2d 446 [2d Dept 2009]). Here, defendant failed to make any showing as to whether it adequately supervised the students during recess and whether it was foreseeable that an injury would occur by permitting students to play touch football near the Belgium blocks. Moreover, a triable issue of fact remains as to whether allowing students to play touch football near the Belgium blocks enhanced the danger and produced a foreseeable risk of injury (see MP v. Mineola 166 AD3d 953, 88 NYS3d 479 [2d Dept 2018]). Furthermore, while defendant contends that plaintiff is unable to identify precisely what caused him to fall, that contention addresses only whether the presence of the Belgium blocks constituted a tripping hazard and was an instrumentality of plaintiff’s fall, not whether defendant provided adequate supervision. Accordingly, defendant’s motion for summary judgment dismissing the complaint is denied. The foregoing constitutes the decision and order of the court. Dated: January 9, 2020 Riverhead, New York ____FINAL DISPOSITION ____X____ NON-FINAL DISPOSITION
