Testa v. East Meadow Union Free School District

Majority

p. 940

Tiffany Testa et al., Respondents, v East Meadow Union Free School District, Appellant, et al., Defendant.

[938 NYS2d 903]

p. 941

The plaintiffs commenced, this action to recover damages for personal injuries allegedly sustained by the infant plaintiff when she fell while performing a cheerleading stunt, which she had performed numerous times in the past. The defendant East Meadow Union Free School District (hereinafter the defendant) established its prima facie entitlement to judgment as a matter of law based on the defense of primary assumption of risk by demonstrating that the infant plaintiff assumed the risk of injury by voluntarily engaging in the activity of cheerleading with knowledge of its inherent risks (see Lomonico v Massapequa Pub. Schools, 84 AD3d 1033 [2011]; DiGiose v Bellmore-Merrick Cent. High School Dist., 50 AD3d 623 [2008]; Rendine v St. John’s Univ., 289 AD2d 465 [2001]; Weber v William Floyd School Dist., UFSD, 272 AD 2d 396 [2000]; Fisher v Syosset Cent. School Dist., 264 AD2d 438 [1999]). The defendant also made a prima facie showing that it did not fail to properly supervise the infant plaintiff (see Lomonico v Massapequa Pub. Schools, 84 AD3d 1033 [2011]).

In opposition, the plaintiffs failed to raise a triable issue of fact. The opinion of the plaintiffs’ expert, submitted in opposition to the motion, was insufficient to raise a triable issue of fact, as it was not in admissible form (see CPLR 2106; Doumanis v Conzo, 265 AD2d 296 [1999]; see also Moore v 3 Phase Equestrian Ctr., Inc., 83 AD3d 677 [2011]; Hegy v Coller, 262 AD2d 606 [1999]), and no excuse was provided for the failure to tender the evidence in admissible form (see generally Moffett v Gerardi, 75 AD3d 496 , 498 [2010]).

Accordingly, the defendant’s motion for summary judgment dismissing the complaint insofar as asserted against it should have been granted. Skelos, J.P, Balkin, Roman and Sgroi, JJ., concur.

Cases cited

Lomonico v. Massapequa Public Schools 84 AD3d 1033 N.Y. App. Div. 2011-05-17 p. 941
DiGiose v. Bellmore-Merrick Central High School District 50 AD3d 623 N.Y. App. Div. 2008-04-01 p. 941
Rendine v. St. John's University 289 AD2d 465 N.Y. App. Div. 2001-12-24 p. 941
Weber v. William Floyd School District, UFSD 272 AD 2d 396 N.Y. App. Div. 2000-05-08 p. 941
Doumanis v. Conzo 265 AD2d 296 N.Y. App. Div. 1999-10-04 p. 941
Moore v. 3 Phase Equestrian Center, Inc. 83 AD3d 677 N.Y. App. Div. 2011-04-05 p. 941
Hegy v. Coller 262 AD2d 606 N.Y. App. Div. 1999-06-28 p. 941
Moffett v. Gerardi 75 AD3d 496 N.Y. App. Div. 2010-07-06 at 498 p. 941