Upon the following papers numbered 1 to50read on these motions for summary judgment ; Notice of Motion/ Order to Show Cause and supporting papers 1 - 16, 17 - 37 ; Notice of Cross Motion and supporting papers; Answering Affidavits and supporting papers 38 - 44 ; Replying Affidavits and supporting papers 45 - 46, 47 - 50 ; Other; (and after hearing counsel in support and opposed to the motion) it is,

ORDERED that these motions are hereby consolidated for purposes of this determination; and it is further

ORDERED that this motion by defendants William Floyd School District and Sean Baumiller for an order pursuant to CPLR 3212 granting summary judgment dismissing the complaint and all cross claims against them, is denied; and it is further

ORDERED that this motion by defendant Sachem Central School District for an order pursuant to CPLR 3212 granting summary judgment dismissing the complaint and all cross claims against it, is granted.

This action was commenced to recover damages, personally and derivatively, for personal injuries sustained by the infant plaintiff, Salvatore Giannino (Sal), on October 16, 2008, while playing in an interscholastic football game at Sagamore Middle School within the defendant Sachem Central School District (Sachem). Sal was a member of the Sagamore football team, which was playing against a team from the William Floyd Middle School, which is a part of the defendant William Floyd Union Free School District (William Floyd), sued herein as the William Floyd School District. The William Floyd team was coached by defendant Sean Baumiller (Baumiller), an employee of William Floyd. During the game, a William Floyd player stepped on Sal's left hand, injuring him. The plaintiffs allege that the defendants are liable for the infant plaintiff's injuries based on their negligence in failing to enforce the official rules for middle school football, which require that players wear only sneakers, or football shoes with a molded sole and molded cleats.

William Floyd and Baumiller move for summary judgment dismissing the complaint against them on the grounds that Sal voluntarily assumed the risk of playing football, and that they owed no duty to Sal as a matter of law. [*2]

Sal testified at a 50-h municipal hearing on March 16, 2009, and he was deposed on July 21, 2010. His testimony was essentially the same at both proceedings, and it can be summarized as follows: on the date of the incident, he was in the eighth-grade at Sagamore Middle School, and he was a member of the school football team. He had not played football in seventh grade. The coaches for the football team were head coach, Joe Murphy, and his brother, assistant coach, Robert Murphy. Football practice began in September 2008, at which time the coaches informed the players that they were only allowed to wear rubber cleats, and that metal cleats and screw-in plastic cleats were prohibited. Sal stated that he attended football practices six times a week, and played in four games, before his accident. On two occasions his coach caught players wearing metal cleats at practices. At each game, the officials advised the teams that they were to wear the proper equipment, and coach Joe Murphy reminded the players of the importance of wearing proper footwear. Prior to the start of the game on October 16, 2008, no one physically checked the players' footwear, although the officials addressed both teams about wearing rubber cleats. About midway through the second quarter of the game, he was playing defense when William Floyd ran a running play. Sal indicated that he moved towards the ball carrier, intending to tackle him, and that he was blocked by an offensive lineman and knocked to the ground. While laying on the ground on his stomach, with his hands outstretched and palms down, another William Floyd player stepped on his left hand. He did not know if it was the ball carrier or another player that stepped on his hand, but he saw that the player was wearing metal cleats. He left the game and was taken by ambulance to Brookhaven Hospital. A couple of days later, assistant coach Robert Murphy told him that a William Floyd player was kicked out of the game for wearing metal cleats.

Plaintiff Joseph Giannino, Sal's father, testified at a 50-h municipal hearing on March 16, 2009, and he was deposed on July 21, 2010. His testimony was essentially the same at both proceedings, and it can be summarized as follows: prior to the season he received a list from the school detailing the items of proper and prohibited football equipment, including the information that only rubber cleats were allowed. On the day of Sal's accident, he was present at the game and he recalled that coach Joe Murphy instructed the Sagamore players regarding proper footwear prior to the game. Mr. Giannino stated that he was seated at

the 50-yard line during the game. Approximately ten minutes into the second quarter, Sal was injured while playing defense. Sal was running towards the ball carrier when he was engaged by a blocker, who knocked him to the ground. He saw Sal laying on his stomach with outstretched hands,

but he did not see any actual contact by a William Floyd player with Sal's hand. After the incident, Sal got up, ran off the field, spoke to his coach, and then went into a waiting ambulance.

The Sagamore assistant coach, Robert Murphy, was deposed on September 22, 2010. He testified that he has been a coach for the football team for 28 years. He explained that middle school football is played according to modified rules governing play as well as participation. The rules are set forth by Section XI of the New York State Public High School Athletic Association (NYSPHSAA) and include an equipment regulation that specifies that only "one-piece molded rubber" cleats are permitted in middle school play. At the high school level, screw-in plastic cleats [*3]are permitted, but the rule is different for middle school, based on safety considerations. Coach Murphy stated that it is his practice to look around at his players during warm ups before games to ensure that they are not wearing illegal equipment. He did not recall doing so on the day of Sal's accident. He was on the field, behind his players and as permitted by the modified rules, at the time of Sal's injury. As William Floyd ran the ball, Sal went to make the tackle, and a group of players piled together. He heard someone yell that they had hurt their finger. He then heard some of the Sagamore players say that a William Floyd player was wearing metal cleats. He told the officials to check the William Floyd players for illegal equipment, and he walked off the field. Coach Murphy indicated that a penalty was called against William Floyd, but that he did not know if it was for the use of illegal cleats.

Baumiller, the coach of the William Floyd team, was deposed on September 22, 2010. He testified that he has been the coach for 13 years, and that Section XI rules for middle school football require a plastic molded cleat. He stated that the footwear rules are explained at the team's first practice and throughout the season, but that no information is sent to the parents of the players. As coach, he is responsible for ensuring that the players are wearing the proper equipment, and that he checks for compliance with the rules when his team boards the bus for an away game and while the team is stretching before every game. At the October 16, 2008 game, an official came over to him and told him that a William Floyd player was wearing illegal cleats. Although he was advised of the cleat issue before he learned of an injury to a Sagamore player, Baumiller did not know when that injury occurred. He identified Nick Engasser as the player wearing the illegal cleats, which were the screw-in plastic type.

The proponent of a summary judgment motion must make a prima facie showing of entitlement to judgment as a matter of law, tendering sufficient evidence to eliminate any material issue of fact (see Alvarez v Prospect Hospital, 68 NY2d 320, 508 NYS2d 923 [1986]; Winegrad v New York Univ. Med. Ctr., 64 NY2d 851, 487 NYS2d 316 [1985]). The burden then shifts to the party opposing the motion which must produce evidentiary proof in admissible form sufficient to require a trial of the material issues of fact (Roth v Barreto, 289 AD2d 557, 735 NYS2d 197 [2d Dept 2001]; Rebecchi v Whitmore, 172 AD2d 600, 568 NYS2d 423 [2d Dept 1991]; O'Neill v Fishkill, 134 AD2d 487, 521 NYS2d 272 [2d Dept 1987]). Furthermore, the parties' competing interest must be viewed "in a light most favorable to the party opposing the motion" (Marine Midland Bank, N.A. v Dino & Artie's Automatic Transmission Co., 168 AD2d 610, 563 NYS2d 449 [2d Dept 1990]).

As a general rule, a plaintiff who voluntarily participates in a sporting or recreational event is held to have consented to those commonly-appreciated risks that are inherent in, and arise out of, the nature of the sport generally and flow from participation therein (see Morgan v State of New York, 90 NY2d 471, 662 NYS2d 421 [1997]; Paone v County of Suffolk, 251 AD2d 563, 674 NYS2d 761 [2d Dept 1998]), including the injury-causing events which are the known, apparent, or reasonably foreseeable risks of the participation (see Rosebaum v Bayis Ne'Emon Inc., 32 AD3d 534, 820 NYS2d 326 [2d Dept 2006]; Colucci v Nansen Park, Inc., 226 AD2d 336, 640 NYS2d [*4]578 [2d Dept 1996]). Although awareness of the risks involved in a particular sport is an essential element of the primary assumption of risk doctrine, it is not necessary that the injured plaintiff have foreseen the exact manner in which his or her injury occurred; all that is required is an awareness of the injury-causing potential of the mechanism from which the injury results (Maddox v City of New York, 66 NY2d 270, 496 NYS2d 726 [1985]). In addition, the plaintiff's awareness of risk is to be assessed against the background of the skill and experience of the particular plaintiff (see Maddox v. City of New York, id.; Gahan v Mineola Union Free School Dist., 241 AD2d 439, 660 NYS2d 144 [2d Dept 1997]). Moreover, a defendant seeking summary judgment on the ground of primary assumption of risk bears no greater burden than the establishment of the defense, and need not establish its own exercise of reasonable care (Maddox v City of New York, supra).

Here, William Floyd has established its entitlement to summary judgment, and the application of the doctrine of primary assumption of the risk. It is clear that this is a sporting event with a significant risk of injury. Although Sal had not played middle school football before entering the eighth grade, he had attended numerous team practices, and he had played in approximately four football games before he was injured. The risk of being stepped on by another player is inherent in the game of football (see Morgan v State of New York, supra).

In opposition to the instant motion, the plaintiffs submit, inter alia, the affidavit of the referee who officiated the subject football game, the deposition of Nick Engasser, the player alleged to have been wearing illegal footwear, and the affidavit of an expert, Stephen F. Coccaro, M.D. Initially, the Court declines to consider the affidavit of the plaintiffs' proffered expert. It is clear from the record that the plaintiffs failed to identify the expert in pretrial disclosure, and that they have not offered an excuse for failing to identify the expert in response to the defendant's discovery demands. In addition, the plaintiffs served the subject affidavit after the note of issue and certificate of readiness attesting to the completion of discovery were filed in this matter, and the defendant was unaware of the expert until it was served with the expert's affidavit in opposition to his summary judgment motion. Under the circumstances, the expert's affidavit is inadmissible (Construction by Singletree, Inc. v Lowe, 55 AD3d 861, 866 NYS2d 702 [2d Dept 2008]; Yax v Development Team, Inc., 67 AD3d 1003, 893 NYS2d 554 [2d Dept 2009]). In any event, said expert's opinion avers that Sal's injury "was more likely caused by a ... plastic cleat, rather than a cleat of soft molded rubber." However, there is no evidence that the applicable rules require a cleat of soft rubber. Inasmuch as the expert's conclusions is based upon assumptions, rather than evidentiary facts, his affidavit is without probative value (see Busino v Meachem, 270 AD2d 606, 704 NYS2d 690 [3d Dept 2000]; see also Paul v Cooper, 45 AD3d 1485, 845 NYS2d 905 [4th Dept 2007]).

In his affidavit, John Kay swears that he is the secretary of the Suffolk County Football Officials Association, and that he has been officiating middle school football games for over 35 years. On October

16, 2008, he was one of three officials who officiated the subject football game. As a result of Sal's injury, he states that he created a "Liability Alert Form," in the regular course of his business as a [*5]referee acting on behalf of New York State Association of Certified Football Officials, Inc. Mr. Kay attaches a copy of said Liability Alert Form to his affidavit, and he further swears that it is a true, accurate and correct copy of his report of the incident. The report states that "while participating on defense against a William Floyd touchdown, [Sal] left hand (sic) was stepped on ..." The report further provides that "Sagamore coach informed official (John Kay) that he believe (sic) Wm Floyd players had screw on cleats on. Mr. Kay examined some players and found # 43 had screw on cleats ... Mr. Kay penalized the Wm Floyd head coach for 15 yards. Head coach was asked by the officials at the pregame talk if all players were legally equipped - he stated yes. As per rule, it is his responsibility to check equipment."

Nick Engasser (Nick), a nonparty witness was deposed on April 20, 2011. He testified that he was a member of the William Floyd Middle School football team coached by Sean Baumiller in 2008. Prior to the season, coach Baumiller told the players that they should buy cleats, but that metal cleats were not allowed. He was not told that screw-in plastic cleats were not allowed. He stated that no written instructions regarding equipment was issued to the team or their parents. Thereafter, he and his brother, who was also on the William Floyd team, purchased Nike shoes with screw in plastic cleats. Nick further testifies that he wore his Nike cleats during practices, and in the games that were completed prior to the game with the Sagamore team. He stated that he stepped on a Sagamore player's hand during the game, and that the referee told him to go to the sidelines because he did not have the right cleats on. He saw the referee speak with his coach, but he did not hear their conversation. After he went to the sidelines, he borrowed another player's cleats and he continued to play in the game.

While students voluntarily participating in an interscholastic sport are deemed to have assumed the risks of those injuries that are known, apparent or reasonably foreseeable consequences of their participation (Turcotte v Fell, 68 NY2D 432, 510 NYS2d 49 [1986]; De Massi v Rogers, 34 AD3d 720, 826 NYS2d 106 [2d Dept 2006]), assumption of the risk is not an absolute defense as schools are still obligated to exercise ordinary reasonable care to protect students from unassumed, concealed or unreasonably increased risks (Morgan v State, supra; Benitez v New York City Bd. of Educ., 73 NY2d 650, 543 NYS2d 29 [1989]). Likewise, participants in interscholastic sport may not be held to have consented to injurious acts from other athletes which are reckless or intentional (Benitez v New York City Bd. of Educ., supra; Turcotte v Fell, supra).

The plaintiffs have submitted evidence establishing that the NYSPHSAA rule existed in order to ensure that middle school football players were afforded a greater measure of safety than their high school counterparts. Thus, they have raised an issue of fact as to whether the risks inherent in the sport of football were unreasonably increased such that the doctrine of assumption of risk does not bar Sal's personal injury action (see eg. Morgan v. State of New York, supra; Benitez v New York City Bd. of Educ., supra). The question of whether Sal assumed the risk of being stepped on by a metal or plastic cleat should be determined by the trier of fact, and may not be determined as a matter of law (Anand v Kapoor, 61 AD3d 787, 877 NYS2d 425 [2d Dept 2009]; Jacobs v Kent, 303 AD2d 1000, 757 NYS2d 408 [4th Dept 2003]; Laboy v. Wallkill Cent. School Dist., 201 AD2d 780, 607 NYS2d 746 [3d Dept 1994]). [*6]

Accordingly, William Floyd and Baumiller's motion for summary judgment dismissing the complaint is denied.

Sachem moves for summary judgment dismissing the complaint and all cross claims against it on the grounds that it owed no duty to Sal to make certain that opposing football team members were wearing legal equipment, and that he voluntarily assumed the risk of playing football. In all material respects, the Sachem's submission on its motion is identical to that of William Floyd and Baumiller.

To prove a prima facie case of negligence, a plaintiff must demonstrate the existence of a duty, a breach of that duty and that the breach of such duty was a proximate cause of his or her injuries (see, Pulka v Edelman, 40 NY2d 781, 390 NYS2d 393 [1976]; Engelhart v County of Orange, 16 AD3d 369, 790 NYS2d 704 [2d Dept 2005]).Although proximate cause generally is a matter for the jury, a plaintiff who brings a negligence action must establish prima facie that the defendant's negligence was a substantial cause of the event which produced his or her injury (Derdiarian v Felix Contr. Corp., 51 NY2d 308, 434 NYS2d 166 [1980]; see also Maheshwari v City of New York, 2 NY3d 288, 778 NYS2d 442 [2004]; Forman v City of White Plains, 5 AD3d 434, 773 NYS2d 102 [2d Dept 2004]). Further, while proximate cause may be inferred from the facts and circumstances surrounding the injury, there must be sufficient proof in the record to permit a finding of proximate cause based not upon speculation, but upon the logical inferences to be drawn from the evidence (see Schneider v Kings Highway Hosp. Ctr., 67 NY2d 743, 500 NYS2d 95 [1986]; Hartman v Mountain Val. Brew Pub, 301 AD2d 570, 754 NYS2d 31 [2d Dept 2003]; Babino v City of New York, 234 AD2d 241, 650 NYS2d 778 [2d Dept 1996]).

Sachem has established its entitlement to summary judgment dismissing the complaint and all cross claims against it. There is no evidence that Sachem had a duty to ensure that players on the opposing football team complied with the NYSPHSAA rules, including those regarding footwear. In addition, there is no evidence that any action or inaction on the part of Sachem was a substantial factor in causing Sal's injury. Moreover, there is no evidence that Sachem breached its duty to exercise ordinary reasonable care to protect Sal from unassumed, concealed or unreasonably increased risks of playing football on October 16, 2008 (Morgan v State, supra; Benitez v New York City Bd. of Educ., supra). In opposition to the motion, the plaintiffs have failed to raise a material issue of fact requiring a trial of its action.

Accordingly, Sachem's motion to dismiss the complaint and all cross claims against it is granted.

The Court directs that the causes of action as to which summary judgment was granted are hereby severed and that the remaining causes of action shall continue (see CPLR 3212 [e] [1]). [*7]

Dated: August 15, 2011_______________________________________

J.S.C.

FINAL DISPOSITIONXNON-FINAL DISPOSITION