Richard Russo, Individually and as Parent and Natural Guardian of Michael Russo, an Infant, Appellant, v. John Liebler et al., Defendants, and Church of Saints Peter and Paul, Respondent

Richard Russo, Individually and as Parent and Natural Guardian of Michael Russo, an Infant, Appellant, v John Liebler et al., Defendants, and Church of Saints Peter and Paul, Respondent. [595 NYS2d 164] [MAJORITY] —Order reversed on the law without costs and motion denied. Memorandum: Supreme Court erred in granting the motion of defendant Church of Saints Peter and Paul (Church) for summary judgment. There are issues of fact whether Church officials had notice that snowball throwing by students presented a special danger (see, Lawes v Board of Educ., 16 NY2d 302; Cioffi v Board of Educ., 27 AD2d 826). In particular, the evidence, viewed in the light most favorable to the non-moving party, raises factual issues whether Church officials had notice that the snow had become icy or contained chunks of ice and that large groups of students regularly engaged in snowball fights in the Church parking lot after Confraternity of Christian Doctrine classes. All concur, except Lawton and Doerr, JJ., who dissent and vote to affirm for reasons stated in decision at Supreme Court, Rath, Jr., J. (Appeal from Order of Supreme Court, Erie County, Rath, Jr., J. — Summary Judgment.) Present — Callahan, J. P., Green, Balio, Lawton and Doerr, JJ.