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Daniel-Marshall v Johnson 2010 NY Slip Op 31036(U) April 29, 2010 Supreme Court, Columbia County Docket Number: 08-925 Judge: Joseph C. Teresi Republished from New York State Unified Court System's E-Courts Service. Search E-Courts (http://www.nycourts.gov/ecourts) for any additional information on this case. This opinion is uncorrected and not selected for official publication.

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STATE OF NEW YORK SUPREME COURT MONICA DANIEL-MARSHALL and EDWARD G. MARSHALL, SR., individually and as parents and natural guardians of CHEY ANN A. S. DANIEL-MARSHALL, an infant under the age of eighteen, Plaintiffs, -againstWAYNE JOHNSON and CATSKILL CENTRAL SCHOOL DISTRICT, Defendants.

COUNTY OF GREENE

DECISION and ORDER INDEX NO. 08-925 RJI NO. 19-09-4214

Supreme Court Greene County All Purpose Term, April 12, 2010 Assigned to Justice Joseph C. Teresi APPEARANCES: Simon & Schneider Sara Schneider, Esq. Attorneys for Plaintiffs 6193 Main Street Tannersville, New York 12485 Law Office of Epstein & Rayhill Jeffrey T. Culkin, Esq. Attorneys for Defendants 950 New Loudon Road, Suite 230 Latham, New York 12110 TERESI, J.: On November 30, 2005, then nine year old Cheyann A.S. Daniel-Marshall (hereinafter "Cheyann") was practicing volleyball. Practice was held at a Catskill Elementary School District

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(hereinafter "Catskill") gym and coached by Wayne Johnson (hereinafter "Johnson")!.

After

Cheyann finished participating in a running drill, she ran under the volleyball net. The top of her head caught the bottom of the net, she fell and was injured. On this record, the above facts are uncontested. Plaintiffs commenced this action seeking damages due to the injuries Cheyann sustained. Issue was joined by Defendants, discovery is complete and a trial date certain is set. Defendants now move for summary judgement, claiming that the doctrine of "primary assumption of the risk" bars Plaintiffs' claims against both Defendants and, as against Catskill, thatno evidence of negligence exists. Plaintiffs opposes the motions. Because Defendants failed to demonstrate their entitlement to judgment as a matter of law on either theory, their motions are denied. "Summary judgment is a drastic remedy that should not be granted where there is any doubt as to the existence of a triable issue." (t:iapierski v. Finn, 229 AD2d 869, 870 [3d Dept. 1996]). It is well established that the proponent of a summary judgment motion bears the "threshold burden of tendering evidentiary proof in admissible form establishing entitlement to judgment as a matter oflaw." (Chiarini ex reI. Chiarini v. County of Ulster, 9 AD3d 769 [3d Dept. 2004], Smalls v. AJI Industries, Inc., 10 NY3d 733 [2008], Alvarez v. Prospect Hospital, 68 NY2d 320 [1986]; CPLR

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