Careful Consideration Must Always Be Given to When A Cross Appeal May Be Necessary

In Agosto v. City of New Rochelle, the defendants moved to dismiss the plaintiffs' complaint on the basis that plaintiff had assumed the risk of injury by participating in a game of two-hand touch football.  The plaintiff moved to dismiss the affirmative defense of "assumption of risk".  The defendants' motion was denied and so was plaintiffs, but only defendants appealed.  The Second Department affirmed the denial of the defendants' motion, but declined to consider the plaintiffs' argument that their motion should have been granted.  The Court held: "The plaintiffs' contention that the Supreme Court improperly denied their motion to strike the affirmative defense of assumption of risk from the defendants' respective answers is not properly before this Court since the plaintiffs failed to appeal or cross appeal from the order (see Servais v Silk Nail Corp., 96 AD3d 546; Young v Abbott & Mills, Inc., 82 AD3d 1218; Matter of Coscette v Town of Wallkill, 18 AD3d 657)."