Ruben v. Jewish Center of Greater Buffalo, Inc.

• Decision Date: 24 January 1986
• Citation: 116 A.D.2d 1016,498 N.Y.S.2d 633
• Parties: Wayne RUBEN and Rona Ruben, Individually and as Husband and Wife, Respondents, v. JEWISH CENTER OF GREATER BUFFALO, INC., Respondent, and Daniel Mooney, Appellant.
• Court: New York Supreme Court — Appellate Division

Page 633

498 N.Y.S.2d 633

116 A.D.2d 1016

Wayne RUBEN and Rona Ruben, Individually and as Husband and Wife, Respondents, v. JEWISH CENTER OF GREATER BUFFALO, INC., Respondent, and Daniel Mooney, Appellant.

Supreme Court, Appellate Division, Fourth Department.

Jan. 24, 1986.

Brown, Kelly, Turner, Hassett & Leach by Michael Kanaley, Buffalo, for appellant.

Siegel, Kelleher, Hirschorn, Munley & Kahn by Steven Wiseman, Buffalo, for respondents Ruben.

Saperston, Day, Lustig, Gallick, Kirschner & Gaglione, P.C. by Mark Donadio, Buffalo, for respondent Jewish Center.

Before DILLON, P.J., and DENMAN, GREEN, O'DONNELL, and SCHNEPP, JJ.

MEMORANDUM:

Defendant Mooney is entitled to summary judgment dismissing the complaint. Plaintiff commenced this personal injury action against Mooney and the Jewish Center of Greater Buffalo after he sustained an injury to his eye when struck by a racquetball propelled by Mooney. The inaccurate return of the ball by Mooney does not constitute negligence (McGee v. Board of Educ. of City of N.Y., 16 A.D.2d 99, 102-103, 226 N.Y.S.2d 329, appeal dismissed 12 N.Y.2d 1100, 240 N.Y.S.2d 165, 190 N.E.2d 537). Upon our examination of the pleadings, affidavits and EBT transcript, we conclude that plaintiff assumed the known inherent risks associated with the sport of racquetball (see Dillard v. Little League Baseball, 55 A.D.2d 477, 390 N.Y.S.2d 735, lv. denied 42 N.Y.2d 801, 396 N.Y.S.2d 1026, 364 N.E.2d 1345; McGee v. Board of Educ., supra ), and that defendant's conduct did not enhance those risks (see Arnold v. Schmeiser, 34 A.D.2d 568, 309 N.Y.S.2d 699). The enactment of article 14-A of the CPLR placed no greater burden on a defendant to establish the defense of assumption of risk than was present prior to the amendment (see Maddox v. City of New York, 66 N.Y.2d 270, 496 N.Y.S.2d 726, 487 N.E.2d 553).

Order unanimously reversed on the law with costs, and defendant Mooney's motion granted.