Upon the foregoing papers it is ordered that the motion is granted and the complaint is dismissed.

Plaintiffs commenced this personal injury action seeking to recover damages for an injury sustained by plaintiff Janelle Vanacore (Janelle) during the course of a High School softball game at a field owned by defendant City of Yonkers. Following the completion of pretrial discovery and with the action awaiting trial, defendants Howard Kirschner and Vito Galatioto move for summary judgment dismissing the complaint as against them.^[FN1] [*2]

The facts involved in this case are not complicated. On April 30, 2003 Janelle was playing third base for Ursiline High School in a game against Gorton High School. According to Janelle, in her second at-bat she hit a line drive and was running to second base when she observed several small pieces of green glass on the ground near the base. In an effort to avoid being cut by the glass, she attempted to stop her slide into second base. As a result of the manner in which she jammed her left leg into the base, she injured her anterior cruciate ligament.

Seeking to recover damages for her injuries, she commenced this action against the City of Yonkers, and Kirschner and Galatioto, the two umpires assigned to the game by BOCES. The parties engaged in pretrial discovery, including examinations before trial of numerous witnesses. As noted, with discovery complete and a trial of the action scheduled, Kirschner and Galatioto (together hereinafter "the Umpires") move for summary judgment dismissing the complaint.

In support of their motion, the Umpires rely upon two arguments. First, they contend that they did not have either actual or constructive notice of the presence of glass on the field. Second, they assert that Janelle assumed the risk that she would be injured playing softball. Although the first argument is without relevance, the second one, which is not contested, warrants summary judgment.

"To establish a prima facie case of negligence, a plaintiff must demonstrate (1) a duty owed by the defendant to the plaintiff, (2) a breach thereof, and (3) injury proximately resulting therefrom" (Solomon v. City of New York, 66 NY2d 1026,1027 [1985]). As relates to a premises liability action against an owner or other party having a duty to properly maintain the property, "the plaintiff must demonstrate that the defendant created the condition which caused the accident, or that the defendant had actual or constructive notice of the condition" (Kraemer v. K-Mart Corp., 226 AD2d 590,590 [2d Dept. 1996]). And where the basis of liability in a premises liability action is constructive notice, there must be proof that "[the] defect [was] visible and apparent and [that] it [] exist[ed] for a sufficient length of time prior to the accident to permit defendant[] [] to discover and remedy it" (Gordon v. American Museum of Natural History, 67 NY2d 836,837 [1996]).

In this case, the Umpires have offered proof that they were unaware of the presence of glass on the field at any time before or during the game, as a result of an inspection of the field [*3]that they performed before play commenced. They have also offered evidence that no glass was observed by the coach of Janelle's team when she similarly inspected the field, or by any of the players, prior to Janelle's accident. Thus, if this case was based upon a theory of premises liability, summary judgment would be warranted on this showing, because no contrary proof has been offered by plaintiffs (see Paciello v. May Dept. Stores Co., 263 AD2d 533 [2d Dept. 1999]).

Here, however, as the Umpires acknowledge, plaintiffs have brought their claim based upon a duty imposed upon umpires to inspect the field both prior to commencing play and during the game. However, neither the Umpires nor plaintiffs address the issue of whether there was, in fact, such a duty in this case. Nor, more significantly, do the Umpires present evidence related to the manner in which they performed that duty during the course of the game. Therefore, irrespective of the sufficiency of plaintiffs' opposition as relates to the notice issue, the Umpires are not entitled to summary judgment based upon their proof of lack of notice (see Roman v. Hudson Telegraph Associates, 15 AD3d 227,228 [1st Dept. 2005] ["Where, as here, the moving party has not met the initial burden of setting forth evidentiary facts sufficient to establish entitlement to judgment as a matter of law, the motion must be denied. There is no necessity for the opposing party to respond with evidentiary proof."]).

Nevertheless, the Umpires have made a prima facie showing of entitlement to summary judgment on the theory that Janelle assumed the risk of injury by participating in the softball game (see Totino v. Nassau County of Boy Scouts of America, 213 AD2d 710,711 [2d Dept. 1995], lv. denied 86 NY2d 708 [1995] [Summary judgment granted dismissing complaint of infant plaintiff who was injured during a softball game when an adult slid into a base and collided with the infant plaintiff, on the ground that the infant

had assumed the risk]). Because plaintiffs failed to address the Umpires' assumption of risk argument, they have not met their burden as the opponents of the summary judgment motion. Accordingly, the Umpires' motion is granted and the complaint is dismissed.

[*4]The foregoing shall constitute the decision and order of the Court.

Dated: White Plains, New York

September 28, 2007

HON. WILLIAM J. GIACOMO, J.S.C.

cc:

For Court purposes only: Final Disp: Yes

Appearance: No

Number of Motions: 1