Lik v. LA Fitness, Inc.

Full title: Sabri Lik, Plaintiff(s), v. LA Fitness, Inc., Defendant(s).

Court: Supreme Court, Nassau County

Date published: May 5, 2016

2016 N.Y. Slip Op. 50755 (N.Y. Sup. Ct. 2016)

Opinion

4871/14

05-05-2016

Sabri Lik, Plaintiff(s), v. LA Fitness, Inc., Defendant(s).

Attorney for Plaintiff Finz & Finz, PC 410 East Jericho Tpke. Mineola, NY 11501 516-433-3000 Attorneys for Defendant Goldberg Segalla, LLP 600 Lexington Avenue New York, NY 10022 646-292-8700

Jeffrey S. Brown, J.

Attorney for Plaintiff Finz & Finz, PC 410 East Jericho Tpke. Mineola, NY 11501 516-433-3000 Attorneys for Defendant Goldberg Segalla, LLP 600 Lexington Avenue New York, NY 10022 646-292-8700 Jeffrey S. Brown, J.

The following papers were read on this motion: Papers Numbered Notice of Motion, Affidavits (Affirmations), Exhibits Annexed 1 Answering Affidavit 2 Reply Affidavit 3

Defendant moves by notice of motion for an order pursuant to CPLR 3212 granting summary judgment dismissing plaintiff's complaint in its entirety against defendant.

This is an action for personal injuries allegedly sustained by plaintiff as a result of an accident which occurred on January 4, 2014 while plaintiff was playing basketball at defendant's health club located at 3601 Hempstead Turnpike, Levittown, New York. Plaintiff alleges that he suffered a knee injury after jumping up during a basketball game and landing on an alleged "defective floor board."

Defendant argues that plaintiff was participating in a sporting activity which contained inherent risks which plaintiff assumed by engaging in such activity, and it was those risks inherent in the sport which caused plaintiff's injury, and not any negligent conduct on behalf of the defendant. Defendant further asserts that plaintiff failed to provided evidence that if such defect existed, defendant had the required notice, either actual or constructive, prior to the occurrence. Specifically, defendants contend there is no record of any formal complaints or prior occurrences involving the alleged basketball floor condition that could have contributed to the accident occurring as plaintiff described. Defendants maintains that regular inspections were done prior to the incident which revealed no such issues regarding the flooring.

Plaintiff opposes, arguing that defendant has failed to show its entitlement to judgment as a matter of law on the basis of the assumption of risk doctrine, because the uncontroverted evidence establishes that plaintiff's injury was caused by the defective floorboards of defendant's basketball court, which is not one of the risks inherent in the sport of basketball. Plaintiff asserts that defendant has not offered an affidavit from any expert supporting its "patently absurd" position that the existence of a defective gymnasium floorboard is a risk that is commonly inherent in the sport of basketball. Plaintiff additionally contends that defendant has not demonstrated the absence of factual issues regarding constructive and actual notice. Specifically, defendant has not offered any evidence of when the basketball court was last inspected prior to plaintiff's accident.

"It is well settled that a the proponent of a motion for summary judgment must make a prima facie showing of entitlement to judgment as a matter of law by providing sufficient evidence to demonstrate the absence of material issues of fact ( Sillman v Twentieth Century Fox, 3 NY2d 395 [1957]; Alvarez v Prospect Hospital, 68 NY2d 320 [1986]; Zuckerman v City of New York, 49 NY2d 557 [1980]; Bhatti v Roche, 140 AD2d 660 [2d Dept 1998]). To obtain summary judgment, the moving party must establish its claim or defense by tendering sufficient evidentiary proof, in admissible form, sufficient to warrant the Court, as a matter of law, to direct judgment in the movant's favor ( Friends of Animals, Inc. v Associated Fur Mfrs., Inc., 46 NY2d 1065 [1979]). Such evidence may include deposition transcripts, as well as other proof annexed to an attorney's affirmation (CPLR § 3212 [b]; Olan v Farrell Lines, 64 NY2d 1092 [1985]).

"If a sufficient prima facie showing is demonstrated, the burden then shifts to the non-moving party to come forward with competent evidence to demonstrate the existence of a material issue of fact, the existence of which necessarily precludes the granting of summary judgment and necessitates a trial ( Zuckerman v City of New York, 49 NY2d 557 [1980], supra). It is incumbent upon the non-moving party to lay bare all of the facts which bear on the issues raised in the motion ( Mgrditchian v Donato, 141 AD2d 513 [2d Dept 1998]). Conclusory allegations are insufficient to defeat the application and the

opposing party must provide more than a mere reiteration of those facts contained in the pleadings ( Toth v Carver Street Associates, 191 AD2d 631 [2d Dept 1993]). When considering a motion for summary judgment, the function of the court is not to resolve issues but rather to determine if any such material issues of fact exist ( Sillman v Twentieth Century Fox, 3 NY2d 395 [1957], supra)."

Recine v. Margolis, 24 Misc 3d 1244A [Sup. Ct. Nassau County 2009].

First, regarding the assumption of risk issue, it is fundamental that to recover in a negligence action a plaintiff must establish that the defendant owed him a duty to use reasonable care, and that it breached that duty (Akins v. Glens Falls City School Dist., 53 NY2d 325, 333 [1981]; Pulka v. Edelman, 40 NY2d 781, 782 [1976]; Kimbar v. Estis, 1 NY2d 399, 405 [1956])." 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 a sport generally and flow from such participation'" (Demelio v Playmakers, Inc., 63 AD3d 777 [2d Dept 2009] quoting Morgan v State of New York, 90 NY2d 471, 484 [1997]). The owner of a sporting venue continues "to owe a duty to exercise care to make conditions as safe as they appear to be. If the risks of the activity are fully comprehended or perfectly obvious, the plaintiff has consented to them (Turcotte v Fell, 68 NY2d 432, 439 [1986]).

Where there is primary assumption of risk of a sporting activity, generally, the defendant has no legal duty to the plaintiff. However, while it is true that by voluntarily participating in a sporting event the plaintiff is deemed to have assumed those commonly appreciated risks which are inherent in and arise out of the nature of the sport, the plaintiff's assumption of those risks is not an absolute defense but a measure of the defendant's duty of care (see, Morgan, supra; Turcott, supra).

The application standard for the assumption of risk should include whether the conditions caused by the defendants' negligence are unique and created a dangerous condition over and above the usual dangers that are inherent in the sport (see, Owen v R.J.S. Safety Equipment Inc., 79 NY2d 967).

"A showing [of] some negligent act or inaction, referenced to the applicable duty of care owed to him by [the] defendants, which may be said to constitute "a substantial cause of the events which produced the injury" ' is necessary." (Morgan, at 485 citing Benitez v New York City Bd. of Educ., 73 NY2d 650, 659 [1989]). "As early as 1929, Judge Cardozo framed the modern debate by articulating the pertinent tort policy and doctrine as follows: One who takes part in such a sport accepts the dangers that inhere in it so far as they are obvious and necessary, just as a fencer accepts the risk of a thrust by his antagonist or a spectator at a ball game the chance of contact with the ball. . . . A different case would be here if the dangers inherent in the sport were obscure or unobserved, or so serious as to justify the belief that precautions of some kind must have been taken to avert them'" (Morgan, at 482-483 (citing Murphy v Steeplechase Amusement Co., 250 NY 479 [1929]). "Another important counterweight to an undue imposition of the assumption of risk doctrine is that participants will not be deemed to have assumed the risks of . . . concealed or unreasonable risks." (Id.) (see also, Weinberger v Solomon Schecter Sch. of Westchester, 102 AD3d 675 [2d Dept 2013] ("The faulty equipment provided by the School . . . did not represent risks that were inherent in the sport of softball and, instead, enhanced the risk of being struck by a line drive").

Here, on this record, as a matter of law, the doctrine of primary assumption of risk is not applicable and does not operate to bar plaintiff's recovery, as defective floorboards in the basketball court are not in part of the "usual dangers that are inherent in the sport" of basketball (see, Morgan, supra, at 485; Weinberger v Solomon Schechter Sch of Westchester, 102 AD3d 675 [2d Dept 2013]). The Second Department held in Clark v State that the claimant's decedent "did not assume the risk of injury caused by a steep drop-off several inches from the edge of the playing area's asphalt surface since this created a dangerous condition over and above the usual dangers that are inherent in the sport'" (245 AD2d 413 [2d Dept 1997](internal citations omitted)). The Second Department similarly held in Moore v City of New York that the "injured plaintiff cannot be said as a matter of law to have assumed the risk of being injured as a result of a defective condition on a paved pathway merely because he participated in the activity of bicycling" (29 AD3d 751 [2d Dept 2006]).

The court finds that it is for the trier of fact to determine whether any comparative fault lies, as it would in a typical case involving an allegedly negligent condition occurring in the ordnary course of any property's maintenance (see, Morgan, 90 NY2d 471).

Next, regarding the second issue of actual and constructive notice of the defective condition that allegedly caused plaintiff's injury,

[a] defendant who moves for summary judgment ... has the initial burden of making a prima facie showing that it neither created the hazardous condition nor had actual or constructive notice of its existence for a sufficient length of time to discover and remedy it" ( Yioves v T. J. Maxx, Inc., 29 AD3d 572, 572 [2006]; see Britto v Great Atl. & Pac. Tea Co., Inc., 21 AD3d 436 [2005]; Joachim v 1824 Church Ave., Inc., 12 AD3d 409, 410 [2004]; Stumacher v Waldbaum, Inc., 274 AD2d 572 [2000]). Only after the movant has satisfied this threshold burden will the court examine the sufficiency of the plaintiff's opposition ( see Britto v Great Atl. & Pac. Tea Co., Inc., 21 AD3d 436 [2005]; Joachim v 1824 Church Ave., Inc., 12 AD3d 409 [2004]). "To constitute constructive notice, a defect must be visible and apparent and it must exist for a sufficient length of time prior to the accident to permit [the] defendant's employees to discover and remedy it" ( Gordon v American Museum of Natural History, 67 NY2d 836, 837 [1986]).

To meet its initial burden on the issue of lack of constructive notice, the defendant must offer some evidence as to when the area in question was last cleaned or inspected relative to the time when the plaintiff fell ( see Porco v Marshalls Dept. Stores, 30 AD3d 284, 285 [2006]; Feldmus v Ryan Food Corp., 29 AD3d 940, 941 [2006]; Yioves v T. J. Maxx, Inc., 29 AD3d at 573; Britto v Great Atl. & Pac. Tea Co., Inc., 21 AD3d at 437; Lorenzo v Plitt Theatres, 267 AD2d 54, 56 [1999])."

Birnbaum v New York Racing Assn., Inc. 57 AD3d 598 [2008].

Defendant failed to satisfy its initial burden. The defendant's operation manager, William Campbell, failed to testify to any particularized, specific inspection procedure on the date of the accident in the area where plaintiff fell. The deposition testimony of Mr. Campbell only general referred to daily "walk-throughs of the gym" during which he makes visual inspections of the facilities to make sure everything is alright. No records are kept of these inspections. Therefore, defendant offered no testimony from an employee working that day regarding the last time the gymnasium and basketball court were checked prior to plaintiff's accident. (see Porco, supra; Britto, supra; Joachim, supra).

Accordingly, it is hereby

ORDERED, that defendant's motion for summary judgment is DENIED.

This constitutes the decision and order of this court. All applications not specifically addressed herein are denied. E N T E R : Dated: Mineola, New York May 5, 2016 HON. JEFFREY S. BROWN J.S.C.