Defendants City of Lockport School District and Lockport Senior High School have moved this Court for Order granting Summary Judgment dismissing the Plaintiff's Complaint in its entirety pursuant to CPLR 3212.

Summary Judgment is a drastic remedy which should not be granted if there is a possible relevant factual issue (Siegel, NY Prac § 278, at 438-439 [3d ed]). It is well settled that a party moving for summary judgment must make a prima facie showing of entitlement to judgment as a matter of law by tendering sufficient evidence to demonstrate the absence of any material issues of fact (Alvarez v Prospect Hospital, 68 NY2d 320 [1986]). Once the moving party makes this prima facie showing, the burden shifts to the opposing party to produce admissible evidence sufficient to establish the existence of triable issues of material fact (Zuckerman v City of New York, 49 NY2d 557, 562 [1980]; Wilson v Woodward Builders, Inc., 140 AD2d 957, 958 [4th Dept 1988]).

On October 26, 2006, Zachary Flores, who was a member of the varsity wrestling team at Lockport Senior High School was injured during a pre-season open-mat workout session. Although the "open-mat" sessions were not formal practices, they took place on school ground in the gym and were supervised by a team coach employed by the City of Lockport School District. The injury allegedly took place when Zachary Flores who weighed approximately 119 pounds was matched up by Coach Shawn Murray, the head junior varsity coach, with a teammate who weighed at least 153 pounds. Specifically, Zachary Flores testified that when he was attempting to "roll his opponent" he felt a "pop" in his back. Though he did not seek immediate medical treatment, he was ultimately diagnosed as having sustained a fractured vertebrae. This action was commenced by the filing of a Summons and Complaint on or about November 2, 2007. The Plaintiffs allege that the Defendants were negligent in their supervision of the wrestling session and that said negligent supervision resulted in his injuries.

It is well settled that players who voluntarily join in extracurricular interscholastic sports assume the risks to which their roles expose them but not risks that are unreasonably increased or concealed (Hochreiter v Diocese of Buffalo, 309 AD2d 1216 [4th Dept 2003]). However, the element of risk assumed by a plaintiff does not relieve defendants of their obligation to use reasonable care to guard against a risk which might reasonably be anticipated (Garman v East Rochester School Dist. & Monroe No. 1 Boces, 46 AD3d 1354 [4th Dept 2007]; Havens v Kling, 277 AD2d 1017 [4th Dept 2000]). The law is clear that notwithstanding an athlete's assumption of risks inherent in playing any sport, a school district remains under a duty to exercise ordinary reasonable care to protect student athletes voluntarily involved in extracurricular sports from unreasonably increased risks (Benitez v New York City Bd. of Educ., 73 NY2d 650 [1989]; Muller v Spencerport Cent. School Dist, 55 AD3d 1388 [4th Dept 2008]).

Here, the Defendants were required to exercise reasonable care to protect Mr. Flores from any unreasonably increased risks during the open-mat wrestling session. The record reflects that

Zachary Flores was initially wrestling Kyle Burdick who weighed less than Mr. Flores. Subsequently, Coach Murray took Kyle Burdick aside to work on a move that he was having [*2]difficulty with and chose to match Zachary Flores with a teammate whom he knew weighed over 30-35 pounds more than Mr. Flores. Significantly, Coach Murray stated during his deposition testimony that he was not sure if it would be safe for two wrestlers weighing 30 pounds or more in difference to wrestle each other. In fact, Coach Joseph J. Scapelliti, the head varsity wrestling coach for the school district, testified that the National competition guidelines which he indicated New York State has chosen to accept, recommends that wrestlers should not wrestle anyone more than one weight class higher or one weight class lower.

Based upon the facts and circumstances herein, the Court finds that there exists questions of fact as to whether reasonable care was exercised in the supervision of the open-mat wrestling sessions and whether the coach's conduct in permitting a mismatched drill unreasonably increased Mr. Flores risk of injury (see generally, DeGala by DeGala v Xavier High Sch., 203 AD2d 187 [1st Dept 1994]).

Accordingly, the Defendants' Motion for Summary Judgment pursuant to CPLR 3212 dismissing the Plaintiff's Complaint is denied in its entirety.

The signing of this Decision and Order shall not constitute entry or filing under CPLR 2220. Counsel is not relieved from the applicable provisions of this rule with regard to filing, entry and Notice of Entry.

This constitutes the Judgment and Order of this Court and shall be filed as such.

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RALPH A. BONIELLO, III.

Supreme Court Justice

Niagara Falls, New York