Merino v. Board of Education

Order, Supreme Court, Bronx County (Norma Ruiz, J.), entered April 28, 2008, which, in an action for personal injuries sustained when the infant plaintiff was hit in the eye with a tossed bat during a softball game at defendants’ summer camp, denied defendants’ motion for summary judgment dismissing the complaint on the ground of assumption of risk, unanimously affirmed, without costs.

An issue of fact exists as to whether plaintiff assumed the risk of playing catcher without any catcher protective gear. Such issue is raised by evidence that plaintiff was nine years old at the time of the…