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HRRV in the Courtroom
2007 Archive

Frances Cabrini Reilly v. The City of New York, Edenwald Associates, Inc., Bainbridge Construction, LLC, Krishnanan Sewbhajan and Vareenshan Sewbhajan
Supreme Court, Bronx County – Index No. 17699/2005
November 28, 2007

All Claims Against Defendants Dismissed in Case in Which Plaintiffs Failed to Establish Ownership or Special Use

Frances Cabrini Reilly claimed she was injured when she fell while walking on an allegedly disrepaired sidewalk/driveway leading into a garage that services the property located at 2929 Bainbridge Avenue, owned by Bainbridge Construction, LLC, which was adjacent to the property located at 273 East 199th Street, owned by Krishnanan Sewbhajan and Vareenshan Sewbhajan. Edenwald Associates, represented by HRRV, was also named as a defendant. It owns the building on the opposite side of the garage and driveway, located at 285 East 199th Street.

Justice Larry S. Schachner granted Edenwalds' motion for summary judgment and dismissed all claims against it. The Court held that, based upon the evidence presented by Edenwald, that Edenwald did not have any ownership or control over the location where the plaintiff alleged that she fell. Judge Schachner further concluded that there was no evidence that the insured had created a special use of the location of the plaintiff’s accident.

Tara C. Fappiano represented Edenwald Associates.

Robert Russell v. The City of New York
and NY Mets Sterling Doubleday Enterprises
Civil Court of the City of New York, Queens County –
Index No. 963/04
December 17, 2007

Summary Judgment granted to the defendants based on lack of notice concerning defective seat condition.

In Robert Russell v. The City of New York, et. al., Justice Diccia T. Pineda-Kirwan, sitting in Civil Court, Queens County, granted a motion for summary judgment brought by the defendants the City of New York (“the City”) and Sterling Mets, L.P. formerly known as Sterling Doubleday Enterprises, L.P., sued herein as NY Mets Doubleday Enterprises (“Sterling”).

The plaintiff alleged that he was injured on June 16, 2002 at Shea Stadium when his seat suddenly collapsed. The plaintiff claimed that his injuries were caused by the City and Sterling’s negligence and that the defendants created the seat condition and had actual and constructive notice of the condition.

In support of their motion for summary judgment, the City and Sterling relied upon the plaintiff’s own deposition testimony. The plaintiff testified that while sitting in his seat at a baseball game at Shea Stadium, he stood up to cheer in the eighth inning, then reached to push the seat back down and that as he was about to sit down again, the seat collapsed. The plaintiff admitted that he did not notice any problems with his seat prior to his accident.  Further, the City’s Stadium Director, testified that before the start of the baseball season all of the seats at the Stadium are manually tested and that the seats in a different section of the Stadium are inspected before every home baseball game. The City’s Stadium Director also averred that although he searched the City’s repair records concerning the subject seat prior to the date of accident, no such records were found.

Justice Pineda-Kirwan held that the City and Sterling established prima facie evidence that they did not create the seat condition and did not have actual or constructive notice of the condition. The Court found that in opposition to the defendants’ motion, the plaintiff failed to raise a triable issue of fact. 

The Court rejected the plaintiff’s argument that the plaintiff’s lawsuit was viable based on the doctrine of res ipsa loquitur, which under certain circumstances allows a jury to consider the circumstantial evidence and infer that the defendants were negligent. Justice Pineda-Kirwan concluded that this doctrine was misplaced because the seats at Shea Stadium were not within the exclusive control of the City or Sterling.

Carla Varriale represented the City of New York and Sterling Mets, L.P.

John P. Burke v. Harold Peavy, Haddon House Food Products, Inc., Miller Auto Leasing Company, Ronny A. Colon, and Albany Transport, Inc.
Supreme Court, Dutchess County, 216/2006
December 14, 2007

Summary Judgment Granted in Favor of Defendants—No Evidence that They Caused Serious Trucking Accident

Justice James V. Brands dismissed all claims against the defendants, Ronny A. Colon and Albany Transport, Inc., in this action in which the plaintiff claimed very serious injuries arising out of an accident on July 15, 2003, on Route 22, in Patterson, New York.

The plaintiff was traveling southbound on New York State Route 22. When the plaintiff stopped to make a left hand turn, he was rear-ended by a tractor-trailer, driven by Harold Peavy and owned by Haddon House Food Products, Inc. The collision of the two vehicles propelled the plaintiff’s automobile into the northbound lane of Route 22, and into the path of the tractor-trailer driven by Ronny Colon and owned by Albany Transport.

The defendants Mr. Colon and Albany Transport, represented by HRRV, moved for summary judgment on the grounds that there was no evidence that they caused or contributed to the subject accident. The Court concluded, based upon the evidence presented, that there was no dispute that the first collision caused the plaintiff's vehicle and go into the northbound lane, hitting the truck driven by Mr. Colon, coming in the opposite direction. The plaintiff had no recollection of the second impact and Mr. Peavy did not see Mr. Colon's truck before the accident. The Court expressly declined to consider statements of a witness made to a newspaper reporter, submitted by Mr. Peavy and Haddon House, as hearsay evidence. Thus, Justice Brands found there to be no evidence to contradict Mr. Colon's testimony. As such, the Court ruled that all allegations against Mr. Colon, that he may have done something inappropriate or could have done something to avoid the accident, were based upon pure speculation. Thus, all claims and cross-claims against Mr. Colon and Albany Transport were dismissed.

Tara C. Fappiano represented Mr. Colon and Albany Transport.

Norman Cohen v. Sterling Mets, L.P.
Supreme Court, Queens County Index No. 3971/05
July 24, 2007
17 Misc. 3d 218; 840 N.Y.S.2d 527;

Injury during t-shirt toss held to be customary part of sporting event and, as such, assumed risk warranting dismissal of case

Sterling Mets, L.P. (“Sterling”) obtained summary judgment in a unique negligence action involving a vendor at Shea Stadium (the “Stadium”) who was injured during the t-shirt launch.

In Norman Cohen v. Sterling Mets, L.P., the plaintiff alleged that during the course of his employment as a concession vendor at the Stadium, he sustained various personal injuries when he was struck by a spectator who sought a t-shirt that had been “launched” into the stands in between innings. There was no dispute that the t-shirt launch was a promotional activity that occurred between innings and that it is a common feature at many sporting events. Prior to the t-shirt launch, Sterling provided announcements than the t-shirt launch was about to begin and provided security personnel during the event.

In dismissing the plaintiff’s negligence action against Sterling, the Supreme Court, Queens County held that Sterling established that it was entitled to summary judgment because it did not breach a duty of care to the plaintiff based upon the doctrine of assumption of the risk (which has extensive application in cases involving spectators and participants) of an open obvious condition. As a seasoned vendor who had worked at the Stadium and other venues for years, the plaintiff unquestionably appreciated the risks that were associated with working in unprotected parts of the Stadium. The Court also noted that spectators’ alleged frenzied and dangerous reaction to the t-shirt souvenirs was no different that their effort to obtain a souvenir baseball.

The Court further held that a spectator at a sporting event is deemed to have consented to those risks commonly appreciated which are inherent in and arise out of the event---those risks include the risk of injury presented because bats, balls or t-shirts may enter the stands. The Court held that the plaintiff's arguments that the t-shirt toss was conducted in between innings and is a promotional activity that is not a part of the game were "without merit." The Court compared the t-shirt toss to the tossing of a baseball to fans, or other promotional activities in between innings. In other words, the Court held that it is a customary part of the experience of attending a sporting event such as a baseball game. The Court also rejected the plaintiff’s arguments that the assumption of the risk was not a defense because he failed to demonstrate that he was under an economic or other compulsion to work during the t-shirt launch, notwithstanding his concerns about the purported dangerous condition.

Carla Varriale represented Sterling Mets, L.P.

Allen v. Hendrikson/Scalamandre/Posillico, a Triventure, LLC et al.
Supreme Court, Suffolk County – Index No. 01-16592
July 17, 2007

Dismissal of action against engineering inspector who had no duty to the plaintiff and committed no affirmative acts of negligence

In Allen v. Hendrikson/Scalamandre/Posillico, a Triventure, LLC, et al., Justice Robert W. Doyle, sitting in Suffolk County, granted the motion for summary judgment by defendant Liro Group, Inc. (“Liro”) seeking dismissal of the third-party complaint against it.

This case arose from a motor vehicle accident occurring on the eastbound lanes of the Long Island Expressway in the vicinity of Exit 58 on October 30, 1998. Plaintiff was operating his motorcycle in heavy rush hour traffic. As plaintiff merged into the right hand lane, the flow of traffic braked and came to a stop due to a rear end collision occurring farther up the highway. Plaintiff braked in order to avoid hitting the car in front of him and his motorcycle skidded approximately 30-40 feet, hitting the rear of an SUV and wiping out on the roadway.

Plaintiff brought suit against the defendant-contractor responsible for the construction site alleging that sand and/or dirt was left on the thoroughfare causing him to lose control of his motorcycle which resulted in personal injuries. Following the inception of the lawsuit, the defendant-contractor impleaded Liro, an engineering firm retained by the State of New York to perform inspections of the defendant-contractor’s work.

In support of its motion for summary judgment, third-party defendant Liro argued that engineering firms retained to assure compliance with construction plans and specifications are not liable to injuries to a member of the general public unless the engineer commits an affirmative act of negligence or such liability is clearly imposed by contract. See, Hernandez v. Yonkers Contracting Company, Inc., 306 A.D.2d 379, 760 N.Y.S.2d 865 (2d Dep’t 2003); Domenech v. Associated Engineers, 257 A.D.2d 403, 683 N.Y.S.2d 67 (1st Dep’t 1999); Fecht v. City of New York, 244 A.D.2d 315, 633 N.Y.S.2d 891 (2d Dep’t 1997); and Suriano v. City of New York, 240 A.D.2d 486, 658 N.Y.S.2d 654 (2d Dep’t 1997). In support of this, Liro pointed out that there was no contract between itself and any other party to the lawsuit other than the State of New York. That contract specifically set forth that no third party right of action was created. Additionally, Liro argued that no evidence was presented which indicated that Liro’s personnel committed any affirmative acts of negligence.

In opposition, the third-party plaintiff argued that liability may exist if Liro breached its contractual obligation to monitor the defendant-contractor’s adherence with the project specification and plans and that Liro had the responsibility to notify the defendant-contractor in the event that conditions on the work site were potentially hazardous or did not meet with standard specifications.

The Court determined that the undisputed facts established that Liro did not commit any acts of affirmative negligence leading to plaintiff’s accident nor did they have actual or construction knowledge of the alleged dangerous condition or a duty to plaintiff. The Court noted that Liro was no responsible for the clean-up or maintenance of the site and that Liro was hired only as a consulting engineer by New York State to report on the progress of the work performed by the defendant-contractor. Further, Liro did not direct the manner or method of the work performed by Triventure and had no duties regarding the supervision and control of work crews, their tasks or the safety of the roadway.

David Moodhe v. The City of New York, et. al.
Supreme Court, Queens County Index No. 28453/06
June 1, 2007

Dismissal of action against contractor with no involvement in causing alleged dangerous condition

In David Moodhe v. The City of New York, et. al., Justice Kevin J. Kerrigan, sitting in Queens County, granted the motion to dismiss by defendant Galvin Bros., Inc. (“Galvin”) seeking dismissal of the complaint.

The plaintiff alleged that he was injured as a result of tripping and falling on a defect on the sidewalk in front of 76-14 21st Avenue between 76th and 77th Street in East Elmhurst, New York, on December 3, 2005. His Verified Complaint contained a very specific description of the area where the accident allegedly occurred, alleging that it occurred on “the eastbound sidewalk i/f/o [in front of] Roma Deli Spanish American Food, located at 76-14 21st Avenue, between 77th Street and 76th Street, East Elmhurst, New York and more particularly 8 feet, 10 inches from the above building line, 7 feet, 3 inches from the curb of 21st Avenue and 97 feet, 3 inches to the curb of 76th Street.”

In support of its motion to dismiss, defendant Galvin proffered an affidavit of its superintendent/foreman, who averred that Galvin was hired by the City of New York’s Department of Design and Construction to install pedestrian ramps at designated locations throughout Queens County and that the only work performed by Galvin in the general area of the plaintiff’s accident was across the street. Galvin submitted copies of its bid booklet, bid information, project description, bid bond and contract demonstrating that the work it performed on sidewalks in Queens County was limited to the installation of pedestrian ramps.

Justice Kerrigan found that, in opposition to Galvin’s motion, the plaintiff failed to set forth any evidence raising a question of fact or showing that Galvin performed any work at the subject location. The plaintiff relied upon a street opening permit issued to Galvin on May 29, 2002 that granted it permission to open the sidewalk to install pedestrian ramps on 21st Avenue for a maximum length of 25 feet from 76th Street and that specifically stated that the work was to be done at the intersection. Justice Kerrigan correctly concluded that the evidence established that the only work performed by Galvin was the installation of a pedestrian ramp whereas the plaintiff did not allege that the he fell in the area of a pedestrian ramp. Further, since the complaint alleged that the defect was located 97 feet, 3 inches from the curb of 76th Street and the permit reflects Galvin was only permitted to open the sidewalk for 25 feet from the intersection of 76th Street, the closest Galvin’s work could have come to the subject location was 70 feet.

Galvin was dismissed from the action prior to conducting any discovery.

Ditieri v. Staten Island Skating Pavilion, Inc.
Supreme Court, Richmond County Index No. 102005/2005

May 29, 2007
15 Misc. 3d 1141A; 2007 N.Y. Misc. LEXIS 3848

Ice skater's claims barred by assumption of risk

Justice Robert Gigante, sitting in Supreme Court, Richmond County, granted summary judgment to a Staten Island skating rink in a case where the plaintiff alleged that she was injured while ice skating and caused to fall because of a "rut" in the ice surface. The court ultimately determined that the plaintiff assumed the risk of injury by voluntarily participating in ice skating, where she was aware of the rut and nonetheless continued to skate.

During a public skating session, the plaintiff was skating backwards, with her hands behind her back, and allegedly fell due to the presence of a rut in the ice surface, sustaining personal injuries. Prior to the accident, the plaintiff admitted that she observed the rutted and discolored area of ice located on a section of the skating surface when she initially began skating.

Thereafter, the plaintiff commenced a lawsuit against the skating rink alleging that it negligently and carelessly created or had notice that the ice skating rink became dangerous and defective, that it failed to timely use a Zamboni machine to smooth the surface and that it allowed "too many skaters” on the ice at one time for too long a period of time.

The skating rink moved for summary judgment, arguing primarily that the plaintiff assumed a known and obvious risk, negating any duty of care owed to the plaintiff. The skating rink further argued that the ruts in the ice surface constituted an open and obvious condition of which the plaintiff admitted she was aware. To support its defense of assumption of risk, the skating rink relied upon the plaintiff’s testimony that she had a wealth of ice skating experience and that the plaintiff admitted that she observed and complained of the rut, but continued to skate notwithstanding her knowledge of the alleged “condition.”

In opposition, the plaintiff contended that the doctrine of assumption of risk was inapplicable because the rutted surface was a condition that was "over and above" the usual dangers that are inherent in the sport of ice skating and unreasonably increased the risk of injury. The plaintiff also alleged that the absence of skating guards "aggravated" the conditions.

The court determined that the plaintiff, aware of the inherent risks involved in ice skating, assumed the risk of injury by voluntarily participating in the activity. “By engaging in a sport or recreational activity, a participant consents to those commonly appreciated risks which are inherent in and arise out of the nature of the sport and generally flow from such participation.” Morgan v. State of New York, 90 N.Y.2d 471, 685 N.E.2d 202, 662 N.Y.S.2d 421 (1997). The court held that the "plaintiff was, by her own admission, an experienced ice skater, who continued to skate notwithstanding her actual knowledge of the alleged defects which she essentially characterized as open and obvious." See Brugnatelli v. County of Westchester, 277 A.D.2d 191, 715 N.Y.S.2d 870 (2d Dep’t 2000) (plaintiff, “an experienced amateur ice hockey player, assumed the risks inherent in the sport, including those risks associated with any open and obvious conditions of the ice surface.”); Stanger v. M & T Pretzel, Inc., 5 A.D.3d 471, 772 N.Y.S.2d 571 (2d Dep’t 2004) (“…plaintiff, an experienced ice skater, voluntarily continued to skate despite the alleged defective condition of the skating rink surface, and thus assumed the risk.”).

Carla Varriale and Gregg Scharaga represented Staten Island Skating Pavilion, Inc.

Abramowitz-Lemell v. Astoria Family Dental
Supreme Court, Queens County – Index No. 16423/03
May 21, 2007

HRRV wins dismissal in professional malpractice/sexual harassment claim asserting the bankruptcy defense under 11 U.S.C.S. Section 541.

Mastery of the technical aspects of the Bankruptcy law and good old fashioned sleuthing by HRRV attorneys resulted in a dismissal of a high-exposure medical malpractice and sexual harassment claim against a dental practice. In Abramowitz-Lemell v. Astoria Family Dental, Justice Peter J. O’Donoghue of the Supreme Court, Queens County dismissed a dental malpractice action against the defendants based upon the affirmative defense of lack of capacity to sue. The plaintiff had filed for and was discharged in bankruptcy after the suit was commenced, but failed to notify the bankruptcy trustee of her pending lawsuit. Notwithstanding the potential merits of the case, the court summarily dismissed

The plaintiff had alleged that the defendant and its employees had failed to treat plaintiff for a periodontal condition resulting in injuries, and, during the course of treatment, an employee had engaged in an improper course of conduct toward plaintiff. Early in the litigation, HRRV lawyers aggressively defended the harassment claims resulting in a summary dismissal of those claims against defendant. But the defense did not end there.

HRRV lawyers conducted an in-depth investigation into plaintiff’s background and determined that plaintiff had filed for bankruptcy during the litigation and was discharged without advising the Trustee of the pending medical malpractice suit. HRRV moved for summary judgment based upon the well-settled law that the plaintiff-debtor's title to the dental malpractice action vested in the bankruptcy trustee when plaintiff-debtor filed for bankruptcy. 11 U.S.C.S. § 541(a)(1)(7). Thus, the pending lawsuit, which accrued prior to the close of the bankruptcy proceedings, was the property of the bankruptcy estate and the plaintiff-debtor lost the capacity to maintain the action on her own behalf. 11 U.S.C.S. §554(d). It follows that an individual debtor lacks the legal capacity to sue on an undisclosed claim that accrues prior to the close of the bankruptcy proceeding. DeLarco v. DeWitt, 136 A.D.2d 406, 408 (3d Dept. 1998). Therefore, when a plaintiff fails to advise the bankruptcy trustee of a pending suit, the complaint must be dismissed as a matter of law. Reynolds v. Blue Cross, 210 A.D.2d 619 (3d Dept. 1994); Stich v. Oakdale Dental Center, 157 A.D.2d 1011 (3d Dept. 1990).

Consequently, Justice O’Donoughue held that, notwithstanding the potential merits of the claim, the plaintiff lacked capacity to sue and granted summary judgment in the defendant’s favor, dismissing the plaintiff’s action for dental malpractice. Plaintiff attempted to move to set aside the dismissal to no avail.

Sandi Marano v. The New York Mets, et. al.
Supreme Court, Queens County Index No. 19781/04
May 4, 2007

Summary judgment granted where plaintiff speculated

In Sandi Marano v. The New York Mets, et. al., Justice James P. Dollard of Queens County granted defendant’s motion for summary judgment and dismissed the plaintiff’s lawsuit, which alleged that the defendant was negligent in the supervision, control, management and operation of Shea Stadium and in the hiring, training and supervising of the Stadium staff.

The plaintiff alleged that she was injured on August 17, 2002 when while sitting in her seat an usher walking through the aisles behind her, fell onto her right shoulder and right portion of her neck. The plaintiff testified at her deposition that she observed the usher walking up the stairs to seat people. He fell from behind her, causing the plaintiff to “black out for a split second.” The plaintiff was unable to identify the usher by name, but testified that she saw him at the Stadium before and claimed that after he fell, she smelled a scent of alcohol on his breath. Nonetheless, she admitted that she never observed the usher drinking at any time, was not aware of anyone else who observed him drinking and never came to learn that he had been drinking. The plaintiff did not observe the usher’s footwear, the condition of the ground behind her and had no recollection whether the ground was wet. Finally, the plaintiff testified that although she had attended approximately fifteen Mets games each of the prior five years and usually sat in the same alcohol free section, she was not aware of any prior complaints about the usher and had no knowledge of the hiring or training practices of the ushers at the Stadium.

In support of its motion, the defendant submitted an affidavit of the usher involved. He averred that he had worked as an usher for five years prior to the accident, that he never reported to work under the influence of alcohol, that there were no prior complaints about his use of alcohol and that he had never before fallen on any patrons.

The Court concluded that the defendant met its burden for summary judgment by demonstrating that the plaintiff could not identify the cause of the accident. Judge Dollard found that there was no evidence that the defendant had actual or constructive notice of any condition within the Stadium that caused the usher to fall and that there was no evidence that the usher was drinking and was intoxicated. Judge Dollard stated in his decision, “[s]ince it is just as likely that the accident could have been caused by some other factor, such as a misstep or loss of balance, any determination by the trier of fact as to the cause of the accident would be based upon sheer speculation.” There was also no evidence that the usher had a propensity to fall and thus no basis for the plaintiff’s claims of negligent hiring or supervision.

Carla Varriale represented the defendant, Sterling Mets, L.P., incorrectly sued as The New York Mets, The New York Mets Baseball Club and Sterling Doubleday Enterprises.

Robert Smith v. SMG Management Company, SMG, Inc. County of Nassau and Nassau Veterans Memorial Coliseum
Supreme Court, Nassau County Index No. 1996/04
March 23, 2007

“Fictitious Factual Issue” Insufficient To Defeat Summary Judgment Motion

In Robert Smith v. SMG Management Company, SMG, Inc. County of Nassau and Nassau Veterans Memorial Coliseum, Justice William LaMarca of the Supreme Court, Nassau County granted the defendants’ motion for summary judgment and dismissed the plaintiff’s negligence action.

The plaintiff sought damages for alleged personal injuries sustained when he fell as he descended the stairs at the Nassau Coliseum in Uniondale, New York. He attended a Disney on Ice Show with his family. As he descended the stairs leading towards the ice (where the Disney characters were located) at the end of the performance, he carried his young daughter in his arms. Upon arriving at the bottom of the stairs, instead of stepping down to the ground level, the plaintiff stepped onto a smaller step/platform. The plaintiff fell forward onto both of his knees and sustained personal injuries.

Addressing the defendants' motion for summary judgment, Justice LaMarca determined that the last step from the aisle to the ground level was open and obvious and not inherently dangerous, and that the affidavit of plaintiff’s expert engineer was conclusory and failed to raise a triable issue of fact. Similarly, the plaintiff’s self-serving affidavit which attempted to change his prior testimony regarding the existence of the step/platform was found to be unavailing. Justice LaMarca held that his affidavit was designed to avoid plaintiff's earlier statements and create a “fictitious factual issue,” and that a feigned issue of fact was insufficient to defeat the defendants’ motion for summary judgment.

Carla Varriale represented the defendants.

Koudellou v. Island Tennis, L.P.
Supreme Court, Nassau County Index No. 4249/2005
March 19, 2007

Dismissal of Complaint Based Upon Enforceable Waiver and Assumption of Risk

Justice Michelle Woodard, sitting in Supreme Court, Nassau County, granted summary judgment to a Long Island health and fitness club in a case where the plaintiff sued the fitness club after he was injured during a supervised personal training session by one of the club’s certified personal trainers.

The court ultimately determined that the plaintiff, who signed a release of liability, was enforceable. The court also held that the plaintiff assumed the risks of injury by voluntarily participating in personal training sessions involving weight training.

Prior to the accident on July 8, 2004, the plaintiff, a seasoned high school athlete, contracted for personal training sessions pursuant to a written contract between the plaintiff and plaintiff’s mother and the defendant fitness club, Sportime. A release of liability clause is included in the written contract, which releases the fitness club and its employees from any and all responsibilities or liability from injuries or damages resulting from the member’s participation in any activities or use of equipment in sports activities at the club. The contract also states that by signing the agreement, the contracting member understands and is aware that “strength, flexibility and aerobic exercise, including the use of equipment, is a potentially hazardous activity” and that sport and fitness activities involve a risk of injury and the member is voluntarily participating in these activities with knowledge of the dangers involved. The contract was signed by the plaintiff, plaintiff’s mother and by a representative of the fitness club.

During a personal training session with a certified personal trainer, plaintiff performed multi-directional lunges and allegedly sustained personal injuries. Thereafter, plaintiff commenced a lawsuit against the fitness club and its employees, alleging they “failed to properly supervise, train, instruct, observe, demonstrate, or otherwise provide training” to the plaintiff. Additionally, the plaintiff alleged that the fitness club was negligent, careless and reckless in failing to properly screen its personal trainer, investigate qualifications of, train, supervise, guide, and direct the personal trainer and that the fitness club was negligent in permitting the employee to work as a personal trainer at the fitness club.

The fitness club moved for summary judgment, arguing primarily that the plaintiff and his mother signed a release of liability which released the fitness club and its employees from any and all responsibilities on liability from injuries resulting from plaintiff's participation in any activities at the fitness club’s facility facility. Furthermore, the fitness club contended that the release was not void against public policy because the plaintiff was at the fitness center for instructional purposes and not recreational purposes as his injury occurred during a weight training session with a personal trainer employed by the gym. See generally, NY CLS Gen. Oblig. Law § 5-326; see also Evans v. Pikeway, Inc., 7 Misc. 3d 348, 2004 NY Slip Op 24556 (Sup. Ct., Nassau County 2004) (Summary judgment was granted to the defendants because the waiver was valid and enforceable and Gen. Oblig. Law § 5-326 was inapplicable).

The fitness club further argued that plaintiff assumed a known and obvious risk, negating any duty of care owed to plaintiff. To support its defense of assumption of risk, the fitness club relied upon the plaintiff’s testimony that plaintiff had previous experience with weight training and that plaintiff had performed multi-directional lunges in at least one prior personal training session. The fitness club contended that the plaintiff expressly assumed the risks of injury because the risks were delineated in the contract signed by the plaintiff.

In opposition, plaintiff relied upon the affidavit and report of a purported certified personal training expert, who opined that the fitness club’s personal trainer’s negligence in supervising, instructing and training the plaintiff caused the plaintiff’s injury. Specifically, the certified personal trainer claimed that the choice of exercise and the manner in which it was performed caused the plaintiff’s injury. Plaintiff also alleged that a question of fact existed as to whether he understood the release of liability at the time he signed the contract and whether he was participating in an inherently dangerous activity.

The court determined that the waiver was enforceable because of the plain language of the exculpatory and release language of the waiver, the nature of the weight training, the fact that the plaintiff voluntarily chose to engage in personal training sessions and the fact that plaintiff and plaintiff's mother signed the waiver. The risks associated with weight training were clearly delineated on the waiver according to the court.
The court also determined that the plaintiff assumed the risks of injury associated with weight training because “[b]y engaging in a sport or recreational activity, a participant consents to those commonly appreciated risks which are inherent in and arise out of the nature of the activity and generally flow from such participation.” The court gave little credence to the affidavit of plaintiff’s certified personal trainer because the allegations of the expert were deemed conclusory, unsupported by the record, lacked foundation and were insufficient to raise a triable issue of fact. See Furey v. Kraff, 27 AD3d 416 (2d Dep't 2006). Furthermore, the court pointed out that the plaintiff’s certified personal trainer failed to physically examine the plaintiff, yet he opined on the plaintiff’s physical deformities based upon the fitness club’s initial written evaluation of plaintiff prior to the commencement of the personal training sessions.

Carla Varriale and Gregg Scharaga represented Island Tennis.

Fernandez v. Orb Management, Ltd., Printing House Condominium and Sterling Elevator Corp. v. Printing House Fitness Center, Ltd.
Supreme Court, New York County Index No. 120978/2002
March 2, 2007

Dismissal of third-party complaint seeking contractual and common law indemnification

In Fernandez v. Orb Management, Ltd., et. al., Justice Emily Goodman of the Supreme Court, New York County, dismissed a third party action commenced by Orb Management, Ltd. and Printing House Condominium against Printing House Fitness Center, Ltd. Plaintiff, an employee of Fitness Center, sustained injuries when an elevator within the premises owned and/or managed by Orb, abruptly stopped and fell. The defendants commenced a third-party action against Fitness Center, which leased several floors in the building, for contractual and common-law indemnification.

Fitness Center moved for summary judgment arguing that the lease's indemnification agreement could not be enforced. The court determined that the applicable language of the lease, when strictly construed, did not permit a claim for contractual indemnification because the owner of the building failed to provide written notice of the potential claim to Fitness, and therefore no duty to indemnify the owner had arisen. See Slamow v. Del Col, 79 N.Y2d 1016, 1018 (1992). Furthermore, the court ruled that there was no evidence put forth establishing that Fitness Center breached any condition of the lease or was affirmatively negligent in maintaining or servicing the subject elevator, which it had no duty to. Defendants’ allegations of negligence were based upon speculation, and deemed insufficient to defeat a motion for summary judgment.

The court also determined that Fitness Center had no common law duty of indemnification to the defendants pursuant to New York Worker's Compensation Law section 11, which states that no claim for contribution or indemnity may exist against an employer, where an employee is acting within the scope of his or her employment, unless the employee suffers a "grave injury." Plaintiff had not alleged that she suffered a "grave injury" as defined by section 11 and therefore the claims for common law indemnification were dismissed.

Carla Varriale and Gregg Scharaga represented Printing House Fitness Center, Ltd.

Small v. PM Operating Group, LLC
Supreme Court New York County Index No. 100736/05
February 1, 2007

Sole proximate cause and absence of notice

In Small v. PM Operating Group, LLC, plaintiff alleged that she slipped and fell after she stepped in a wet "foreign substance" on the floor of defendant's bathroom and then slipped while walking down a staircase, located some 15 feet away from the substance in which she stepped. Plaintiff alleged she slipped because her shoe was wet from the substance, which she admittedly did not clean from her shoe.

The court granted summary judgment to the defendant, who had argued that plaintiff’s conduct was the sole proximate cause of her injury and that, in any event, plaintiff could not establish that defendant had notice of the allegedly dangerous condition. injury The court held that defendant indisputably established that it did not create the alleged dangerous condition nor did it have actual or constructive notice thereof. Plaintiff's speculative assertion that a bathroom attendant would have seen the foreign substance on the floor given the small distance between where the bathroom attendant was working and the location of the foreign substance was insufficient to raise a friable issue of fact. Plaintiff also failed to raise a friable issue of fact as to her unsupported assertion that the stairs appeared glossy and that this contributed to her fall.

Steven H. Rosenfeld and Gregg Scharaga represented PM Operating Group, LLC.

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