Opinion
March 6, 1984
Appeal from the Supreme Court, Orleans County, Miles, J.
Present — Dillon, P.J., Hancock, Jr., Denman, Green and Moule, JJ.
Order unanimously reversed, without costs, and motion denied. Memorandum: Plaintiff was injured when she was hit in the face by an errantly thrown ball while watching a softball game at Bullard Park, owned, operated and maintained by the defendant. At the time, plaintiff was seated in the bleachers located behind first base. This was the only seating provided in the ball park and the area was not screened or otherwise protected. Behind home plate there was a backstop but no seating. Special Term granted summary judgment to the defendant relying on Akins v Glens Falls City School Dist. ( 53 N.Y.2d 325). ¶ Special Term erred. Since here there was no seating where there was screening and no screening where there was seating, a situation not present in Akins, a jury question is presented regarding the alleged negligence of defendant in failing to exercise reasonable and ordinary care to protect spectators from foreseeable dangers (see Caldwell v Village of Is. Park, 304 N.Y. 268, 274; Sadowski v Long Is. R.R. Co., 292 N.Y. 448, 455-456; Benjamin v State of New York, 115 Misc.2d 71, aff'd. 96 A.D.2d 762).