Conolly v. St. John's University

— Order, Supreme Court, Bronx County (Anita Florio, J.), entered March 25, 1991, which, inter alia, denied that branch of defendant’s motion seeking summary judgment, unanimously affirmed, without costs. Defendant St. John’s University argues the personal injury action of its enrolled student, plaintiff Carol Conolly should be dismissed inasmuch as she assumed the risk of injury when she played in a school tennis match with knowledge that the court on which she was playing was defective. Plaintiff’s affidavit, submitted in opposition to the motion to dismiss, indicates that to preserve her continuing entitlement to a scholarship, she was required to play in all University tennis matches. This affidavit raises a triable issue of fact as to whether plaintiff’s decision to play on the defective court, on the date in question, was a voluntary act. (See, e.g., Verduce v Board of Higher Educ., 8 NY2d 928, revg 9 AD2d 214.) Concur —Sullivan, J. P., Milonas, Wallach and Kassal, JJ.