Opinion
6538 Index 23258/13
06-14-2018
Phyllis PIERCE, Plaintiff–Appellant, v. LUCILLE ROBERTS WOMENS FITNESS, doing business as Lucille Roberts, Defendant–Respondent.
Appell & Parrinelli, New York (John J. Appell of counsel), for appellant. Marshall, Conway & Bradley, P.C., New York (Lauren Turkel of counsel), for respondent.
Appell & Parrinelli, New York (John J. Appell of counsel), for appellant.
Marshall, Conway & Bradley, P.C., New York (Lauren Turkel of counsel), for respondent.
Friedman, J.P., Tom, Kapnick, Kahn, Kern, JJ.
Order, Supreme Court, Bronx County (Fernando Tapia, J.), entered on or about October 27, 2017, which granted defendant's motion for summary judgment dismissing the complaint, unanimously affirmed, without costs.
The negligence claim is barred as a matter of law by the doctrine of primary assumption of the risk (see Morgan v. State of New York , 90 N.Y.2d 471, 484, 662 N.Y.S.2d 421, 685 N.E.2d 202 [1997] ; see also Ingram v. Life Fitness , 140 A.D.3d 628, 628–29, 33 N.Y.S.3d 71 [1st Dept. 2016] ). The record establishes that plaintiff assumed the obvious and inherent risks attendant to the use of treadmills, and she failed to raise a triable issue of fact as to whether defendant "concealed or unreasonably increased [those] risks" ( Morgan, 90 N.Y.2d at 485, 662 N.Y.S.2d 421, 685 N.E.2d 202 ).
Further, the record establishes that the sole proximate cause of the accident was plaintiff, who decided to suddenly stop walking and attempt to turn on her iPod and connect her headphones while she was on the moving treadmill.