Petretti v. Jefferson Valley Racquet Club, Inc.

• Decision Date: 20 January 1998
• Citation: 246 A.D.2d 583,668 N.Y.S.2d 221
• Parties: , 1998 N.Y. Slip Op. 448 Cynthia PETRETTI, Respondent, v. JEFFERSON VALLEY RACQUET CLUB, INC., Appellant, et al., Defendant.
• Court: New York Supreme Court — Appellate Division

Page 221

668 N.Y.S.2d 221

246 A.D.2d 583, 1998 N.Y. Slip Op. 448

Cynthia PETRETTI, Respondent, v. JEFFERSON VALLEY RACQUET CLUB, INC., Appellant, et al., Defendant.

Supreme Court, Appellate Division Second Department.

Jan. 20, 1998.

Feder, Connick & Goldstein, P.C., Mineola (Morton H. Feder and Steven F. Goldstein, of counsel), for appellant.

Macaluso & Associates, P.C., White Plains (Donna A. Fafinski, of counsel), for respondent.

Before BRACKEN, J.P., and PIZZUTO, ALTMAN and KRAUSMAN, JJ.

MEMORANDUM BY THE COURT.

In an action to recover damages for personal injuries, the defendant Jefferson Valley Racquet Club, Inc., appeals, as limited by its brief, from so much of an order of the Supreme Court, Westchester County (Coppola, J.), entered January 10, 1997, as denied its motion for summary judgment dismissing the complaint insofar as asserted against it.

ORDERED that the order is affirmed insofar as appealed from, with costs.

The plaintiff was injured while taking a tennis lesson. According to the plaintiff, the instructor "would hit the ball to each one of us in quick succession and whoever was at the particular place would hit the ball and move". The plaintiff described the occurrence which caused her injury, stating, "I was standing there with my racquet * * * ready, in position * * * waiting for the ball to come and all of a sudden I felt something smash me in the eye * * * which was, of course, obviously the ball".

In the ensuing action to recover damages for personal injuries, brought by the plaintiff against the instructor and the appellant Jefferson Valley Racquet Club, Inc., the latter moved for summary judgment based on an affirmation by its attorney which stated, inter alia, that, "[a]s evidenced by her deposition testimony, [the plaintiff] knew the ball would be hit in her direction and, voluntarily, waited for the ball". Counsel argued that tennis "at it's [sic] very nature is an activity involving the hitting of a ball to and fro". Therefore, counsel asserted, the plaintiff's action should be dismissed based on the doctrine of assumption of the risk. In opposition, the plaintiff contended that the instructor was negligent in hitting the ball erratically and at too great a rate of speed. The Supreme Court denied the motion. We affirm.

We cannot accept the appellant's implicit argument that, in the case of a neophyte such as the plaintiff, the doctrine of assumption of the risk should be applied with the same force as in the case of an experienced player. In this case, the relationship between the instructor, on the one hand, and the plaintiff, a complete novice, on the other, was such that "[t]o all intents and purposes he was her superior whose orders she was obliged to follow" (Verduce v. Board of Higher Educ. in City of N.Y., 9 A.D.2d 214, 220, 192 N.Y.S.2d 913, revd. 8 N.Y.2d 928, 204 N.Y.S.2d 168, 168 N.E.2d 838 on dissenting opn. below; see also, Benitez v. New York City Bd. of Educ., 73 N.Y.2d 650, 657-658, 543 N.Y.S.2d 29, 541 N.E.2d 29; Kelly v. Warner Bros., 230 A.D.2d 829, 646 N.Y.S.2d 631; Conolly v. St. John's Univ., 176 A.D.2d 625, 575 N.Y.S.2d 68). Here, as in Verduce v. Board of Higher Educ. in City of N.Y. (supra), there was "an assurance of safety * * * implicit in the supervisor's direction" (Benitez v. New York City Bd. of Educ., supra, at 658, 543 N.Y.S.2d 29, 541 N.E.2d...