
    [732 NE2d 941, 710 NYS2d 834]
    Edwin Sammis et al., Appellants, v Nassau/Suffolk Football League et al., Respondents.
    Argued May 2, 2000;
    decided June 8, 2000
    APPEARANCES OF COUNSEL
    
      Gruenberg & Kelly, Ronkonkoma (Guy Gruenberg of counsel), for appellants.
    
      
      Epstein, Hill, Grammatico & Gann, East Setauket (John M. Denby of counsel), for Nassau/Suffolk Football League and others, respondents.
   OPINION OF THE COURT

Memorandum.

The order of the Appellate Division should be modified, without costs, by denying summary judgment to defendants and, as so modified, affirmed.

Plaintiff Edwin Sammis and his wife, Maria, commenced this action to recover damages for injuries he sustained while assisting defendant Alex Caruana remove a box from an elevated shelf in an equipment shed at defendant North Babylon Athletic Club. After joinder of issue, plaintiffs moved for partial summary judgment on the issue of liability against all defendants, except the Town of Babylon. Defendants opposed the motion, asserting that plaintiff assumed the risk of injury when he undertook to help Caruana remove the box from the shelf. Supreme Court denied plaintiffs’ motion and, sua sponte, granted defendants summary judgment, dismissing the complaint and all cross claims against them. Supreme Court, applying the doctrine of assumption of risk, held that by electing to help Caruana move the box, plaintiff voluntarily undertook an activity that posed an obvious risk of injury. The Appellate Division affirmed and we now modify its order.

Although the Appellate Division did not expressly invoke the doctrine of assumption of risk — a doctrine that does not apply to this case — it erred in concluding that plaintiff’s act of helping Caruana remove a box from an elevated shelf relieved defendants of any duty to plaintiff or otherwise established defendants’ entitlement to summary judgment. At the same time, the proof also fails to provide a basis for granting plaintiffs partial summary judgment on the question of defendants’ liability. On this record, there exist issues of fact as to comparative fault for a fact finder to consider pursuant to CPLR 1411.

Chief Judge Kaye and Judges Bellacosa, Smith, Levine, Ciparick, Wesley and Rosenblatt concur in memorandum.

Order modified, etc.  