Summary
finding a duty to supervise swimmers and assist them in distress
Summary of this case from Woolard v. Life Time Fitness, Inc.Opinion
13054 Index No. 160482/16 Case No. 2019-4315
02-04-2021
Lynne SCHALMAN, as Executor of the Estate of Stephen Bergen, Deceased, and Lynne Schalman, individually, Plaintiffs–Appellants, v. AQUATIC RECREATIONAL MANAGEMENT, INC., et al., Defendants–Respondents, New York Aquatics, LLC, et al., Defendants.
Hasapidis Law Offices, South Salem (Annette G. Hasapidis of counsel), for appellants. Kaufman Borgeest & Ryan LLP, Valhalla (Shannon Henderson of counsel), for Aquatic Recreational Management, Inc., respondent. Dorf & Nelson, LLP, Rye (Stephanie K. McDougall of counsel), for Rose Associates, Inc., 300 East 85 Street Housing Corp. and 300 E. 85 Street Housing Corp., respondents.
Hasapidis Law Offices, South Salem (Annette G. Hasapidis of counsel), for appellants.
Kaufman Borgeest & Ryan LLP, Valhalla (Shannon Henderson of counsel), for Aquatic Recreational Management, Inc., respondent.
Dorf & Nelson, LLP, Rye (Stephanie K. McDougall of counsel), for Rose Associates, Inc., 300 East 85 Street Housing Corp. and 300 E. 85
Street Housing Corp., respondents.
Manzanet–Daniels, J.P., Singh, Kennedy, Mendez, JJ.
Order, Supreme Court, New York County (Robert David Kalish, J.), entered April 4, 2019, which, to the extent appealed from, granted defendants Aquatic Recreational Management, Inc.’s and Rose Associates, Inc. and 300 East 85th Street Housing Corp.’s motions for summary judgment dismissing the complaint as against them, unanimously affirmed, without costs.
The motion court correctly determined that the duty of care owed to plaintiff's decedent by defendant Aquatic's lifeguard did not extend to anticipating and responding to a non-drowning emergency that arose from an undisclosed medical condition (see Hamilton v. Beretta U.S.A. Corp., 96 N.Y.2d 222, 232, 727 N.Y.S.2d 7, 750 N.E.2d 1055 [2001] ; Williams v. City of New York, 71 A.D.3d 1135, 898 N.Y.S.2d 208 [2d Dept. 2010] ). Nor did the employees of defendants’ owner and manager of the building owe the decedent a duty to recognize his emergency medical event and respond to it (see e.g. Sugarman v. Equinox Holdings, Inc., 73 A.D.3d 654, 901 N.Y.S.2d 615 [1st Dept. 2010] ; Jardine v. Village of Rockville Ctr., 39 Misc.2d 334, 335, 240 N.Y.S.2d 655 [Sup. Ct., Kings County 1963] ).
Moreover, any inattention on the part of the lifeguard was not a proximate cause of the decedent's unfortunate death (see Ohdan v. City of New York, 268 A.D.2d 86, 89, 706 N.Y.S.2d 419 [1st Dept. 2000], lv denied 95 N.Y.2d 769, 722 N.Y.S.2d 473, 745 N.E.2d 393 [2000] ). Although the various experts did not agree on whether he died due to a cardiac event or a glycemic event or a combination of the two, none of them disagreed with the New York City Medical Examiner's opinion that the decedent did not drown.