Opinion
2018–12729 Index No. 2622/15
11-10-2021
Michael HAGGERTY, appellant, v. NORTHERN DUTCHESS HOSPITAL, respondent.
Basch & Keegan, LLP, Kingston, NY (Derek J. Spada of counsel), for appellant. Heidell, Pittoni, Murphy & Bach, LLP, White Plains, NY (Daniel S. Ratner and Daryl Paxson of counsel), for respondent.
Basch & Keegan, LLP, Kingston, NY (Derek J. Spada of counsel), for appellant.
Heidell, Pittoni, Murphy & Bach, LLP, White Plains, NY (Daniel S. Ratner and Daryl Paxson of counsel), for respondent.
LEONARD B. AUSTIN, J.P., COLLEEN D. DUFFY, BETSY BARROS, PAUL WOOTEN, JJ.
DECISION & ORDER
In an action to recover damages for personal injuries, the plaintiff appeals from an order of the Supreme Court, Dutchess County (James D. Pagones, J.), dated August 31, 2018. The order granted the defendant's motion for summary judgment dismissing the complaint.
ORDERED that the order is reversed, on the law, with costs, and the defendant's motion for summary judgment dismissing the complaint is denied.
The plaintiff seeks to recover damages for injuries he allegedly sustained when he fell while performing a balancing exercise, upon the instruction of one of the defendant's employees while at the defendant's fitness and rehabilitation facility. The defendant moved for summary judgment dismissing the complaint, arguing that (1) the assumption of risk doctrine applied to bar liability because the plaintiff was a consenting participant in the activity which caused his injury, he had an appreciation of the nature of the risks involved in the activity, and he voluntarily assumed the risks, and (2) the plaintiff's claims are barred by a release he executed with the defendant's facility. The plaintiff opposed the motion. In an order dated August 31, 2018, the Supreme Court granted the defendant's motion. The plaintiff appeals.
"The assumption of risk doctrine applies where a consenting participant in sporting and amusement activities ‘is aware of the risks; has an appreciation of the nature of the risks; and voluntarily assumes the risks’ " ( Bukowski v. Clarkson Univ., 19 N.Y.3d 353, 356, 948 N.Y.S.2d 568, 971 N.E.2d 849, quoting Morgan v. State of New York, 90 N.Y.2d 471, 484, 662 N.Y.S.2d 421, 685 N.E.2d 202 ). "If the risks of the activity are fully comprehended or perfectly obvious, plaintiff has consented to them and defendant has performed its duty" ( Bukowski v. Clarkson Univ., 19 N.Y.3d at 356, 948 N.Y.S.2d 568, 971 N.E.2d 849 [internal quotation marks omitted]; see Falcaro v. American Skating Ctrs., LLC, 167 A.D.3d 721, 722, 90 N.Y.S.3d 95 ; Lee v. Brooklyn Boulders, LLC, 156 A.D.3d 689, 690, 67 N.Y.S.3d 67 ). "Risks inherent in a sporting activity are those which are known, apparent, natural, or reasonably foreseeable consequences of the participation" ( Calderone v. College, 177 A.D.3d 692, 693, 112 N.Y.S.3d 191 ). "Risks which are ‘commonly encountered’ or ‘inherent’ in a sport, as well as risks ‘involving less than optimal conditions,’ are risks which participants have accepted and are encompassed by the assumption of risk doctrine" ( Ramos v. Michael Epstein Sports Prods., Inc., 173 A.D.3d 1079, 1080–1081, 103 N.Y.S.3d 122, quoting Bukowski v. Clarkson Univ., 19 N.Y.3d at 356, 948 N.Y.S.2d 568, 971 N.E.2d 849 ). "However, participants are not deemed to have assumed the risks of reckless or intentional conduct, or concealed or unreasonably increased risks" ( Mussara v. Mega Funworks, Inc., 100 A.D.3d 185, 192, 952 N.Y.S.2d 568 ).
The defendant failed to establish, prima facie, that the plaintiff assumed the risk of injury when he unsuccessfully attempted the balancing exercise. The deposition testimony relied upon by the defendant raises questions of fact as to whether the trainer exposed the plaintiff to an unassumed risk. Specifically, the trainer allegedly encouraged the plaintiff to attempt the exercise after he expressed that he could not perform it, by allegedly offering verbal reassurances such as "I'm right here," which the plaintiff mistakenly believed meant that the trainer would catch him or stabilize him if he began to fall (see Irish v. Deep Hollow, 251 A.D.2d 293, 293–294, 671 N.Y.S.2d 1024 ; see also Levy v. Town Sports Intl., Inc., 101 A.D.3d 519, 519, 955 N.Y.S.2d 599 ; Myers v. Friends of Shenendehowa Crew, Inc., 31 A.D.3d 853, 854–855, 819 N.Y.S.2d 143 ).
The defendant also failed to establish, prima facie, that the plaintiff's claims are barred by the release the plaintiff executed. The defendant failed to demonstrate the inapplicability of General Obligations Law § 5–326, which would render the release void, as the defendant's evidence did not establish as a matter of law that its facility was not a "gymnasium" within the meaning of that statute (id.; see Gross v. Sweet, 49 N.Y.2d 102, 107, 424 N.Y.S.2d 365, 400 N.E.2d 306 ; Matter of Winston v. Sharfstein, 65 A.D.3d 1053, 1053–1054, 884 N.Y.S.2d 879 ; Roer v. 150 W. End Ave. Owners Corp., 30 Misc.3d 1211[A], 2010 N.Y. Slip Op. 52343[U], 2010 WL 5584595 [Sup. Ct., N.Y. County] ).
In light of the defendant's failure to establish its prima facie entitlement to judgment as a matter of law, the Supreme Court should have denied the motion for summary judgment dismissing the complaint, regardless of the sufficiency of the plaintiff's opposition papers (see Winegrad v. New York Univ. Med. Ctr., 64 N.Y.2d 851, 853, 487 N.Y.S.2d 316, 476 N.E.2d 642 ).
AUSTIN, J.P., DUFFY, BARROS and WOOTEN, JJ., concur.