Royal v. City of Syracuse

Appeal from

It is hereby ordered that the order so appealed from be and the same hereby is unanimously affirmed without costs.

Memorandum: Supreme Court properly denied that part of defendants’ motion to dismiss the complaint, treated by the court as a motion for summary judgment (see CPLR 3211 [c]), addressed to the claim for negligent supervision. The infant plaintiff, a high school cheerleader, was injured at cheerleading practice when she fell while demonstrating a cheerleading stunt to the cheerleading coach. The stunt called for its performer to be lifted by three other cheerleaders from the sides and from behind while a fourth cheerleader acted as a spotter. Immediately after another cheerleader successfully performed the stunt, the infant plaintiff attempted to perform it, but no one acted as a spotter. According to the affidavit of plaintiffs’ expert, performance of the stunt without a spotter was improper and should not have been permitted by the coach. Thus, although the infant plaintiff voluntarily assumed the risks inherent in cheerleading (see Morgan v State of New York, 90 NY2d 471 , 484 [1997]; Weber v William Floyd School Dist., UFSD, 272 AD2d 396 , 397 [2000]), plaintiffs raised a triable issue of fact whether the coach “failed to provide proper supervision of the cheerleading activities, thereby exposing [the infant] plaintiff to unreasonably increased risks of injury” (Sheehan v Hicksville Union Free School Dist., 229 AD2d 1026 , 1026 [1996]; see D’Angelo v Board of Educ. of N. Tonawanda City School Dist., 300 AD2d 1078 [2002]; Cody v Massapequa Union Free School Dist. No. 23, 227 AD2d 368 , 369 [1996]; see also Kane v North Colonie Cent. School Dist., 273 AD2d 526 [2000]; see generally Benitez v New York City Bd. of Educ., 73 NY2d 650 , 658 [1989]). Present — Hurlbutt, J.P., Scudder, Kehoe, Gorski and Lawton, JJ.