New York State Court of Claims

New York State Court of Claims

MONTALVO v. STATE OF NEW YORK, #2001-018-114, Claim No. 100993, Motion Nos. M-62979, M-63172


Synopsis


Court grants defendant's summary judgment motion dismissing claim on the basis that the injuries to claimant in a basketball game were not as a result of negligence on the part of the State, but an assumption of the risk by defendant in a contact sport.

Case Information

UID:
2001-018-114
Claimant(s):
RICKY MONTALVO
Claimant short name:
MONTALVO
Footnote (claimant name) :

Defendant(s):
STATE OF NEW YORK
Footnote (defendant name) :

Third-party claimant(s):

Third-party defendant(s):

Claim number(s):
100993
Motion number(s):
M-62979, M-63172
Cross-motion number(s):

Judge:
DIANE L. FITZPATRICK
Claimant's attorney:
MICHAEL B. MILLER, P.C.
Defendant's attorney:
ELIOT SPITZER
Attorney General of the State of New York
By: JOEL L. MARMELSTEIN, ESQUIREAssistant Attorney General
Third-party defendant's attorney:

Signature date:
December 14, 2001
City:
Syracuse
Comments:

Official citation:

Appellate results:

See also (multicaptioned case)



Decision
Defendant brings this motion for summary judgment pursuant to CPLR 3212 or in the

alternative a protective order pursuant to CPLR 3103. Defendant also brings a separate motion to strike the note of issue.
The claim, filed pro se, seeks damages for injuries sustained on July 3, 1999, when claimant, acting as an inmate basketball coach, suffered a fractured forehead allegedly as a result of the defendant's negligent supervision and instruction.[1] A notice of intention was served upon the defendant on August 26, 1999 also asserting that on July 3, 1999 claimant's team was having a basketball game when he got into an accident and fractured his forehead. The claim was filed on August 31, 1999.
Summary Judgment Motion
The Court will first address the timeliness of claimant's opposing affirmation. Defendant argues that claimant's responding papers were untimely and therefore should be disregarded.

On June 5, 2001, claimant's counsel sent his affirmation in opposition to the motion by overnight mail. The motion return date was July 11, 2001; and defendant made a demand, pursuant to CPLR 2214(b), in his notice of motion that any answering papers be served at least seven days prior to the return date of the motion. Clearly, the answering papers are timely. The defendant has had the opportunity to respond to claimant's arguments in its Reply Affirmation.

Defendant takes exception to claimant's argument that in its opposing documents, the State did not provide prompt or adequate medical care to claimant after he was injured, because no allegation was made in the claim regarding improper medical care. Claimant responds that this allegation was raised in the Bill of Particulars. Since the Bill of Particulars is not a pleading, it may not be used to state a new cause of action or to provide an essential allegation which was not included in the claim. (
Plante v Hinton, 271 AD2d 781; Sebring v Wheatfield Prop. Co., 255 AD2d 927, 928; Leete v Applied Power, Inc., 126 AD2d 796) The claim does not state a cause of action for improper or inadequate medical care, and one cannot now be asserted without leave of court. (CPLR 3025)
Turning to the merits of defendant's summary judgment motion, defendant asserts that claimant was a voluntary participant in the basketball game in which he was injured. Claimant was a good basketball player and basketball is a contact sport in which claimant knew or could have reasonably foreseen the consequences of contact in this basketball game. Claimant opposes the motion arguing that the basketball game in which he was playing began to get very physical as a result of the lack of supervision. Claimant maintains that the lack of supervision created a dangerous situation beyond what claimant assumed as a risk inherent in the game of basketball.

Here, claimant was an experienced, and by his own account, good basketball player. Claimant was a voluntary participant in the inmate organized after school program tournament called "Green Eyes." There were no correction officers supervising the game at any time, other than the perimeter guards. The game was being officiated by three inmate referees. Claimant played the first 20-minute quarter and was four or five minutes into the second quarter when he and two of his teammates were attempting to block the shot of an opponent. These players jumped four or five times to block the shot, as the opponent rebounded his own ball each time. Claimant and his teammates fouled the opposing player; however, the foul apparently was not called. On the last jump, the opposing player jumped up with the ball, and as he came down he put his head down which contacted claimant's face causing severe injuries. These facts are undisputed.

One who voluntarily participates in a sports activity is deemed to have consented to the risks which are inherent in the sport, (
Morgan v State of New York, 90 NY2d 471, 482-483; Benitez v New York City Board of Educ., 73 NY2d 650, 657), but not those risks associated with intentional or reckless conduct or concealed or unreasonably increased dangers. (Morgan v State of New York, supra at 485; Benitez v New York City Board of Educ., supra at 657) Awareness of the risk assumed is assessed against the skill and experience of the particular claimant involved. (Morgan v State of New York, supra at 485; Benitez v New York City Board of Educ., supra at 657) Assumption of the risk in sports activities is not a shield from liability, but instead is a measure of the duty of care defendant owes. (Morgan v State of New York, supra at 485)
Claimant tries to raise a question of fact by arguing that due to the lack of supervision, the game became "very physical."[2]
Basketball players getting physical while jumping up for a ball, does not raise an issue of unassumed, concealed or unreasonable risk from participating in a basketball game. There is no indication the conduct leading to claimant's injury was intentional or reckless. Bumping heads with another player during the course of a basketball game, even where the players were aggressively seeking the ball after an uncalled foul, is a natural and normal consequence or occurrence in such a game. Even if a correction officer had been supervising, there is nothing to indicate that the players were engaging in conduct which would have warranted the officer stopping the game, superceding the referees. (Kaufman v City of New York, 30 Misc 2d 285) Claimant testified that there was no fighting.
Based upon the undisputed facts, the absence of a correction officer did not increase the risks claimant assumed by voluntarily playing in the Green Eyes basketball tournament.

The motion is GRANTED and the claim is DISMISSED, all other requests for relief are denied as moot, and Motion No. M-63172 is denied as moot.

December 14, 2001
Syracuse, New York

HON. DIANE L. FITZPATRICK
Judge of the Court of Claims


The Court in determining the motions has considered the following documents:

Motion No. M-62979


Notice of Motion for Summary Judgment.........................................................1


Affirmation of Joel L. Marmelstein, Esq. Assistant Attorney General

in support, with all exhibits submitted therewith...............................................2


Affidavit of Jack McDaniel in support...............................................................3


Affirmation in Opposition of Michael B. Miller, Esq. with exhibit A attached

thereto.................................................................................................................4


Reply Affirmation of Joel L. Marmelstein, Esq. Assistant Attorney General...5




Motion No. M-63172


Notice of Motion to Strike Note of Issue............................................................6


Affirmation of Joel L. Marmelstein, Esq. Assistant Attorney General in

support.................................................................................................................7


Affirmation of Michael B. Miller, Esq................................................................8





[1]Claimant's testimony at the deposition indicated he was a player in the basketball game, not a coach.
[2]Claimant explained what he meant by this during the deposition.