Davis v. Kellenberg Memorial High School

—In an action to recover damages for personal injuries, etc., the defendant appeals from an order of the Supreme Court, Nassau [294] County (Parga, J.), dated June 8, 2000, which denied its motion for summary judgment dismissing the complaint. Ordered that the order is reversed, on the law, with costs, the motion is granted, and the complaint is dismissed. The injured plaintiff was a student at the defendant high school. While waiting after school for his mother, he and some other students, who were standing on top of a concrete bench, began rocking the bench by shifting their weight. The injured plaintiff attempted to dismount the bench as it was rocking, and it toppled over, catching his foot and landing on top of it. The defendant made a prima facie showing of its entitlement to judgment as a matter of law (see, Winegrad v New York Univ. Med. Ctr., 64 NY2d 851). The evidence submitted established that the injured plaintiff assumed the risk of injury inherent in his horseplay (see, Bierach v Nichols, 248 AD2d 916, 918; Kelly v Great Neck Union Free School Dist., 192 AD2d 696, 697). In opposition, the plaintiffs did not raise a triable issue of fact. Goldstein, J. P., McGinity, Schmidt and Smith, JJ., concur.