           SUPREME COURT OF THE STATE OF NEW YORK
             Appellate Division, Fourth Judicial Department

345
CA 11-01310
PRESENT: CENTRA, J.P., LINDLEY, SCONIERS, AND MARTOCHE, JJ.


WILLIAM D. AUSTIN, PLAINTIFF-APPELLANT,

                      V                           MEMORANDUM AND ORDER

BUFFALO BILLS, INC., DEFENDANT-RESPONDENT.


CHIACCHIA & FLEMING, LLP, HAMBURG (ANDREW P. FLEMING OF COUNSEL), FOR
PLAINTIFF-APPELLANT.

WALSH, ROBERTS & GRACE, BUFFALO (KEITH N. BOND OF COUNSEL), FOR
DEFENDANT-RESPONDENT.


     Appeal from an order of the Supreme Court, Niagara County
(Richard C. Kloch, Sr., A.J.), entered March 1, 2011 in a personal
injury action. The order granted defendant’s motion for summary
judgment.

     It is hereby ORDERED that the order so appealed from is
unanimously affirmed without costs.

     Memorandum: Supreme Court properly granted defendant’s motion
seeking summary judgment dismissing the complaint. Plaintiff was
injured while working as a security guard during a home game of the
Buffalo Bills football team. Plaintiff was positioned on the field
near the end zone when two players left the field of play and collided
with him. The court properly determined that plaintiff assumed the
risk of his injury. Where, as here, the plaintiff fully comprehended
the risks or the risks are “ ‘perfectly obvious, [then the] plaintiff
has consented to them and [the] defendant has performed its duty’ ”
(Morgan v State of New York, 90 NY2d 471, 484, quoting Turcotte v
Fell, 68 NY2d 432, 439; see Bereswill v National Basketball Assn., 279
AD2d 292, 293; Cannavale v City of New York, 257 AD2d 462, 462-463).
Plaintiff’s contention that he was under an inherent compulsion to
assume the risk is raised for the first time on appeal and thus is not
properly before us (see Ciesinski v Town of Aurora, 202 AD2d 984,
985). In any event, that contention is without merit (see generally
Benitez v New York City Bd. of Educ., 73 NY2d 650, 658-659).




Entered:    March 16, 2012                      Frances E. Cafarell
                                                Clerk of the Court
