Opinion
Index No.: 3776/2011
03-13-2013
ROSEALIN RAMPADARATH, Plaintiff, v. CRUNCH HOLDINGS, LLC, CRUNCH FORT GREEN, LLC, FORT GREEN SPORTS CLUB, LLC, MYLAW REALTY CORPORATION, Defendants.
SHORT FORM ORDER PRESENT: HON.
Justice
Motion No.: 12
Motion Seq.: 4
The following papers numbered 1 to 15 were read on this motion by defendant, CRUNCH HOLDINGS, LLC, CRUNCH FORT GREEN, LLC and FORT GREEN SPORTS CLUB, LLC, for an order, pursuant to CPLR 3212, granting summary judgment in favor of said defendants and dismissing the plaintiff's complaint and all cross-claims asserted against them:
+----------------------------------------------------------------+ ¦ ¦Papers Numbered¦ +------------------------------------------------+---------------¦ ¦Notice of Motion-Affidavits-Memo of Law ¦1 - 6 ¦ +------------------------------------------------+---------------¦ ¦Plaintiff's Affirmation in Opposition-Exhibits..¦7 - 12 ¦ +------------------------------------------------+---------------¦ ¦Reply Affirmation ¦13 - 15 ¦ +----------------------------------------------------------------+
This is an action for damages for personal injuries sustained by plaintiff, Rosealin Rampadarath, on April 20, 2010, during a spinning class at the Crunch Gym owned by co-defendants Crunch Holdings LLC, Crunch Fort Green LLC and Fort Green Sports Club LLC, when the pedal on an exercise bike broke off allegedly causing her to sustain injuries to her left knee, shoulders, left elbow, cervical spine and thoracic spine. Defendant, Mylaw Realty Corporation, owns the building housing the gym which is located at 691 Fulton Avenue Brooklyn, New York. The moving defendants own and operate the Crunch Gym.
The plaintiff commenced an action for negligence against Crunch Holdings LLC, Crunch Fort Green LLC, Fort Green Sports Club LLC, and Mylaw Realty Corporation, by filing a summons and verified complaint on February 16, 2011 and a supplemental summons and complaint on May 23, 2011. Issue was joined by the service of defendants' verified answers on or about March 29, 2011 (Crunch Holdings) and May 27, 2011 (Mylaw Realty). Plaintiff filed a note of issue and certificate of readiness on May 2, 2012. The gravamen of the complaint is that the defendants were negligent in the ownership, maintenance, operation, management, and control of the gym, created a dangerous condition and failed to remedy the dangerous condition despite having actual and constructive notice. In her verified bill of particulars, plaintiff alleges that defendants were negligent in failing to provide safe exercise equipment, specifically the exercise bicycle as a pedal was not properly attached, fastened and/or tightened and in allowing the pedal to remain loosened, unfastened and/or unattached. Plaintiff also alleged that defendants failed to inspect, maintain or repair the defective pedal, and failed to warn or apprise the plaintiff of the hazardous condition. Plaintiff claims that the defendants had actual and constructive notice of the hazardous condition in that the condition existed for such period of time that defendants, in the exercise of due care, should have recognized and remedied it.
Counsel for defendants, CRUNCH HOLDINGS, LLC, CRUNCH FORT GREEN, LLC, FORT GREEN SPORTS CLUB, LLC, now moves for an order granting summary judgment and dismissing the plaintiff's complaint and all cross-claims asserted against them on the ground that the plaintiff has not established that defendants created a dangerous condition or that defendants had actual or constructive knowledge of a dangerous condition.
In support of the motion, defendant's counsel, Barry Meade, Esq., submits his own affirmation dated August 22, 2012; a copy of the pleadings; an affidavit from the spin class instructor, Carl Hall; and copies of the transcripts of the examinations before trial of plaintiff, Rosealin Rampadarath and Carl Hall on behalf of the Crunch defendants.
In her examination before trial, taken on October 20, 2011, plaintiff, Rosealin Rampadarath, age 48, testified that she is employed as a babysitter. At the time of the accident she was a member of Crunch Gym. She stated that she went to the gym on almost a daily basis where she participated in yoga classes, treadmill, elliptical, weight lifting and spinning classes. She stated that the first time she was on the bike during a 45 minute spinning class she had no problems with the bike. Her accident occurred on April 20, 2010 at 7:30 in the evening. Her spinning class instructor was Carl Hall. She testified that at the beginning of the class Mr. Hall buckled a strap on the pedal over her feet and showed her what to do. She stated that she was pedaling during the class and after about 40 minutes, just before the class finished, the right pedal and the strap flew off of the bike into the front of the class. When the pedal came off she almost fell off the bike. She leaned to her left and hit her left knee on something and also injured her right shoulder. She waited on the bike a few minutes until the end of the class and then told Carl about the pedal coming off and showed him her knee. He told her to go home and put ice on it. Plaintiff testified that Hall then put the pedal back on the bike and said the bike was defective. She did not have a problem with the pedal prior to it detaching from the bike. She never made a complaint regarding the bicycles prior to that time. She did not fill out an accident report. She did not go back to the gym after the accident.
Defendant also submits a copy of the transcript of the examination before trial of Carl Hall taken on March 21, 2012. He testified that in April 2012 he was employed as a certified spin class instructor and group fitness instructor by the Crunch Gym in the Fort Green section of Brooklyn. With respect to the incident in question, he stated that he did not help the plaintiff set up her bike and he did not see the pedal come off of the plaintiff's bike. However, he testified that the plaintiff approached him after the class with the pedal in her hand and told him that the pedal came off towards the end of the class and she fell and was injured as a result. Plaintiff pointed out the bicycle she was using and Hall observed that it was missing a pedal. He stated that he did not put the pedal back on the bike. He was not able to tell how the pedal came off the bike. He also stated that he didn't know if the pedal was put back on the bike. Hall stated that he asked the plaintiff if she was ok and suggested that she fill out a report at the front desk. He stated that he filled out a report providing the number of the bike and indicating that the pedal was broken. He believed that he also filled out a maintenanace log report. He states that he fills out a report in a log book that is reviewed by the maintenance men. He stated that he usually lets the coordinator know that there is a broken bike and that he logged it in. He only notates the log when there is an issue and not on a regular basis. When asked if regular inpections or regular maintenace take place on the bikes he stated that he was not sure. He testified that he did not know if the gym kept any maintenance records on the bikes separate from the maintenance log. He stated that he does not walk around the room to insopect the bikes. He did not know if the mechanics regularly check the bikes. He stated that prior to the plaintiff's incident no one had ever made a complaint about a pedal on any of the bikes.
In his affidavit, dated August 16, 2012, Hall states that he was the spin instructor at the plaintiff's spinning class at Crunch Gym on April 20, 2010. He states that at no time prior to the plaintiff's incident did he receive any complaints from anyone about any problem with any of the bikes in the spinning class. He also states that at no time prior to the plaintiff's incident did he receive any complaints from anyone about any problem with the pedals on any of the bikes in the spinning class. He also states that at no time prior to the plaintiff's incident did he witness or hear about a pedal coming off a spinning bike at Crunch during spinning class.
Crunch contends that the plaintiff did not observe any defect or problem with the pedal prior to or during the spinning class and made no complaints about the pedal to Crunch. Defendants also contend that Hall never received any complaints regarding the pedals on any of the bikes. Defendants therefore, move for summary judgment dismissing the plaintiff's complaint on the ground that there is no admissible evidence which establishes that Crunch created the condition or had actual or constructive notice that there was a defective pedal on any of the bikes. Counsel claims that there were no complaints from plaintiff or any other persons about the pedal prior to the incident and plaintiff admits that she was using the bicycle without incident for 40 minutes immediately prior to the accident.
In opposition, plaintiff's counsel, Stefano A. Filippazzo, Esq., contends that the defendants have failed to demonstrate, prima facie that they did not have constructive notice of the defective bicycle based upon Carl Hall's testimony that he was not sure if any regular maintenance or inspections were done on the bikes and he did not know if maintenance records were kept for the spin bikes.
Upon review and consideration of the defendant's motion, the plaintiff's affirmation in opposition, and the defendants' reply thereto, this court finds that the evidence submitted by the defendants was not sufficient to demonstrate, prima facie, that Crunch Gym did not have constructive notice of the defective pedal on the plaintiff's bike prior to the plaintiff's accident.
The proponent of a summary judgment motion must tender evidentiary proof in admissible form eliminating any material issues of fact from the case. If the proponent succeeds, the burden shifts to the party opposing the motion, who then must show the existence of material issues of fact by producing evidentiary proof in admissible form, in support of his position (see Zuckerman v City of New York, 49 NY2d 557[1980]).
A property owner is subject to liability for a defective condition on its premises if a plaintiff demonstrates that the owner either created the alleged defect or had actual or constructive notice of it (see Betz v Daniel Conti, Inc., 69 AD3d 545 [2d Dept. 2010]; Roy v City of New York, 65 AD3d 1030 [2d Dept. [2d Dept. 2009]). A defendant owner or entity who is responsible for maintaining a premises who moves for summary judgment in a case involving a defective condition on the property 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 (see Schnell v Fitzgerald, 95 AD3d 1295 [2d Dept. 2012]).
This court finds that there is a question as to whether the pedal defect was discoverable by reasonable inspection and whether the defendant failed in its obligation to make a reasonable inspection of the bikes used in the plaintiff's spin class (see Hoffman v United Methodist Church, 76 AD3d 541, [2d Dept. 2010]; Colon v Bet Torah, Inc., 66 AD3d 731[2d Dept. 2009][if a reasonable inspection would have disclosed the dangerous condition, the failure to make such an inspection constitutes negligence and may make the owner liable for injuries proximately caused by the condition]). Here, the defendant's witness, Mr. Hall, did not offer sufficient testimony as to specific dates of maintenance and safety checks and testified that he really did not know when the particular bike in question was last inspected. The defendant failed to submit maintenance or inspection records for the bike which allegedly caused plaintiff's accident and failed to produce an affidavit from an individual with personal knowledge regarding the condition of the bike in question upon a recent inspection (see e.g. Delanoy v JP Morgan Chase and Company, 83 AD3d 885 [2d Dept 2011]). Therefore, defendant failed to establish as a matter of law that the defect did not exist for a sufficient period of time to allow defendant to discover and remedy it [see Seivert v Kingpin Enters., Inc., 55 AD3d 1406 [4th Dept. 2008]; Alexander v. New York City Tr., 34 AD3d 312 [1st Dept. 2006]).
Thus, absent specific evidence of when the bike pedal was last inspected, the reasonableness of the inspection, or that an inspection would not have disclosed the defect, the defendant has failed to establish that it lacked constructive notice of the bike's allegedly defective or dangerous condition or that it was free of negligence with respect to it (see Oates v Iacovelli, 80 AD3d 1059 [3d Dept. 2011]; White v Village of Port Chester, 84 AD3d 946 [2d Dept. 2011]; Colon v Bet Torah, Inc., 66 AD3d 731, [2d Dept. 2009]; cf. Lee v Bethel First Pentecostal Church of Am., Inc., 304 AD2d 798 [2d Dept. 2003]).
As defendant failed to establish its entitlement to judgment as a matter of law, it is not necessary to consider the sufficiency of the opposition papers submitted by the plaintiff (see Giraldo v Twins Ambulette Serv., Inc., 96 AD3d 903 [2d Dept. 2012]; King v 230 Park Owners Corp., 95 AD3d 1079[2d Dept. 2012]; Hill v Fence Man, Inc., 78 AD3d 1002 [2d Dept. 2010]).
Accordingly, for all of the above stated reasons, it is hereby
ORDERED, that the motion by defendants CRUNCH HOLDINGS, LLC, CRUNCH FORT GREEN, LLC, and FORT GREEN SPORTS CLUB, LLC for summary judgment is denied. Dated: March 13, 2013
Long Island City, N.Y.
______________________
ROBERT J. MCDONALD
J.S.C.