Opinion
No. 178 SSM 18.
Decided June 14, 2011.
APPEAL, by permission of the Court of Appeals, from an order of the Appellate Division of the Supreme Court in the First Judicial Department, entered June 3, 2010. The Appellate Division affirmed an order of the Supreme Court, New York County (Marylin G. Diamond, J.; op 26 Misc 3d 418), which had denied a motion by plaintiff for partial summary judgment on the issue of liability, and granted a cross motion by defendants for summary judgment dismissing the complaint.
At about 6:22 A.M. on the morning of February 21, 2006, plaintiffs decedent suffered a heart attack while running on a treadmill at a health club that defendants owned and operated. The decedent, age 52, was a longtime club member who frequently exercised on its treadmills. After decedent fell off the treadmill and collapsed on the floor, another patron ran down a flight of stairs to the lobby and alerted the club's assistant manager who immediately called 911 and ran upstairs. Another club employee came to decedent's aid at the same time and immediately began performing cardiopulmonary resuscitation (CPR) on him. While the employee was performing CPR, the assistant manager, who was trained to operate an automated external defibrillator (AED), went to an AED stored in a glass cabinet hung on a nearby wall. The cabinet had a visible key lock mechanism, but was unlocked. Instead of trying to open the cabinet, the assistant manager, who admittedly was panicked, assumed it was locked and, not knowing where the key was, ran back downstairs to the club offices and searched for it. He abandoned his search when emergency medical services (EMS) personnel arrived at the scene. An EMS pre-hospital care report of the incident stated that EMS personnel arrived at 6:29 A.M. and found decedent "in full cardiac arrest." While EMS personnel were administering CPR, more personnel arrived, placed decedent on a monitor, and delivered shocks with their own AED starting at 6:31 A.M. Decedent's heartbeat was restored and he was taken to a hospital. Decedent, who had suffered anoxic brain damage while stricken, remained hospitalized from February 21 until his death on June 14, 2006.
Plaintiff alleged that defendants were liable under theories of common-law negligence and negligence per se for violation of General Business Law § 627-a, which required the club to keep an AED on premises along with a person trained to use it.
Digiulio v Gran, Inc., 74 AD3d 450, affirmed.
Decolator, Cohen DiPrisco, Garden City ( David S. Gould of counsel), for appellant.
Morgan Melhuish Abrutyn, New York City ( Douglas S. Langholz of counsel), for respondents.
Chief Judge LIPPMAN and Judges CIPARICK, GRAFFEO, READ, SMITH, PIGOTT and JONES concur.
OPINION OF THE COURT
MEMORANDUM.
The order of the Appellate Division should be affirmed, with costs.
Assuming arguendo that General Business Law § 627-a implicitly created a duty for defendants to use the automated external defibrillator (AED) the section required them to provide at their facility, plaintiff cannot recover because she failed to raise a triable issue of fact demonstrating that defendants' or their employees' failure to access the AED was grossly negligent ( see General Business Law § 627-a; Public Health Law § 3000-a). Defendants also did not breach any common-law duty to render aid to the decedent.
Plaintiffs remaining contention lacks merit.
On review of submissions pursuant to section 500.11 of the Rules of the Court of Appeals ( 22 NYCRR 500.11), order affirmed, with costs, in a memorandum.