                           State of New York
                    Supreme Court, Appellate Division
                       Third Judicial Department
Decided and Entered: November 5, 2015                    520158
________________________________

JAMES C. MORRISEY et al.,
                    Appellants,
      v                                      MEMORANDUM AND ORDER

GARY D. HASKELL,
                    Respondent.
________________________________


Calendar Date:    September 8, 2015

Before:   McCarthy, J.P., Egan Jr., Lynch and Clark, JJ.

                              __________


      Levene Gouldin & Thompson, LLP, Binghamton (David M.
Gouldin of counsel), for appellants.

      Barclay & Damon, LLP, Syracuse (Alan R. Peterman of
counsel), for respondent.

                              __________


Lynch, J.

      Appeal from an order of the Supreme Court (Reynolds
Fitzgerald, J.), entered August 26, 2014 in Broome County, which
granted defendant's motion for summary judgment dismissing the
complaint.

      Plaintiff James C. Morrisey, and his spouse, derivatively,
commenced this action after he was struck by a bat and injured
during a softball game that he was umpiring. It is undisputed
that Morrisey, who was not wearing a face mask, was injured when
defendant threw his bat after hitting an infield pop-up. Supreme
Court granted defendant's motion for summary judgment dismissing
the complaint. Plaintiffs appeal.

     We affirm.    Under the primary assumption of risk doctrine,
                              -2-                520158

a participant, including an umpire, in a sport such as softball
"consents to those commonly appreciated risks which are inherent
in and arise out of the nature of the sport generally and flow
from such participation" (Morgan v State of New York, 90 NY2d
471, 484 [1997]). Such risks include getting hit with a ball or
a bat during a baseball game, particularly for an experienced
participant (see Bukowski v Clarkson Univ., 19 NY3d 353, 356
[2012]; Roberts v Boys & Girls Republic, Inc., 10 NY3d 889, 889
[2008]; Morgan v State of New York, 90 NY2d at 484-485; Muniz v
Warwick School Dist., 293 AD2d 724, 724 [2002]; Redden v Curren,
245 AD2d 861, 861 [1997]; Checchi v Socorro, 169 AD2d 807, 808
[1991], lv denied 78 NY2d 863 [1991]; Marlowe v Rush-Henrietta
Cent. School Dist., 167 AD2d 820, 820 [1990], affd 78 NY2d 1096
[1991]). That said, "participants are not deemed to have assumed
risks resulting from the reckless or intentional conduct of
others" (Custodi v Town of Amherst, 20 NY3d 83, 88 [2012]; see
Morgan v State of New York, 90 NY2d at 485).

      To begin, we find unpersuasive plaintiffs' claim that
getting hit with a bat is not an inherent risk in a slow pitch,
65-year-old and older softball game. Neither the age of the
players nor the velocity of the pitch negates the readily
apparent risk of a batter releasing the bat after a swing. The
record shows that Morrisey has extensive experience as an umpire
and no claim is made that defendant intentionally threw the bat
at him. The issue distills to whether defendant recklessly threw
the bat, creating a risk "'over and above the usual dangers that
are inherent in the sport'" (Redden v Curren, 245 AD2d at 861,
quoting Laboy v Wallkill Cent. School Dist., 201 AD2d 780, 781
[1994]).

      During his deposition, defendant testified that, after
hitting the ball, he headed towards first base and, about 10 feet
up the baseline, tossed the bat towards the dugout. He denied
being upset, and stated that the bat "wasn't thrown hard." This
description was supported by defendant's teammate, Harold White,
who confirmed during his deposition that defendant tossed the bat
toward the dugout about 10 to 15 feet up the first baseline, that
the bat was not thrown forcefully and that defendant did not
appear to be angry. Although Morrisey averred that he stayed in
position after defendant hit the ball, White, Olin Henneman (a
                              -3-                520158

player from the opposing team) and Paul Farbanish, defendant's
manager, all testified that Morrisey was approximately 8 to 10
feet up the first baseline when he fell after being struck by the
bat.

      Given the foregoing, we find that defendant met his burden
of proving that his conduct was not reckless and that Morrisey's
injury resulted from an inherent risk of the game. In opposition
to the motion, Morrisey maintains that Farbanish told him that
defendant threw the bat in anger. Plaintiffs also submitted the
affidavit of Charles Wheeler, affiliated with the Binghamton
Umpire's Association, who stated that he heard from "a couple of
witnesses" that defendant threw the bat "out of apparent anger."
Both statements are hearsay, and plaintiffs have failed to
produce additional competent evidence of recklessness or a
reasonable excuse for failing to do so (see Craft v Whittmarsh,
83 AD3d 1271, 1273 [2011]). To the contrary, Farbanish explained
during his deposition that after defendant popped up the ball, he
looked down to record the out in his scorebook. When asked
whether he informed Morrisey that defendant threw his bat in
anger, Farbanish responded, "Not that I could recall, no." While
we recognize that plaintiffs also offered the notarized statement
of Kevin Norton, who observed the bat "moving very fast" just
prior to impact, Norton did not observe the manner in which
defendant released the bat. As such, we conclude that plaintiffs
failed to raise an issue of fact as to whether defendant acted
recklessly in discarding the bat, and Supreme Court properly
granted defendant's motion for summary judgment (see Marlowe v
Rush-Henrietta Cent. School Dist., 167 AD2d at 820).

     McCarthy, J.P., Egan Jr. and Clark, JJ., concur.
                        -4-                  520158

ORDERED that the order is affirmed, with costs.




                       ENTER:




                       Robert D. Mayberger
                       Clerk of the Court
