Opinion
15743 Index No. 160167/18 Case No. 2021–01888
04-19-2022
Christine SHAW, Plaintiff–Respondent, v. AKT INMOTION INC., et al., Defendants–Appellants.
Morris Duffy Alonso Faley & Pitcoff, New York (Iryna S. Krauchanka and Kevin A. Faley of counsel), for appellants. Halperin & Halperin, P.C., New York (Jeffrey Weiskopf of counsel), for respondent.
Morris Duffy Alonso Faley & Pitcoff, New York (Iryna S. Krauchanka and Kevin A. Faley of counsel), for appellants.
Halperin & Halperin, P.C., New York (Jeffrey Weiskopf of counsel), for respondent.
Gische, J.P., Webber, Scarpulla, Rodriguez, Higgitt, JJ.
Order, Supreme Court, New York County (Lynn R. Kotler, J.), entered on or about May 18, 2021, which, to the extent appealed, denied defendants’ motion for summary judgment dismissing the complaint, unanimously affirmed, without costs.
Even assuming the "Release of Liability and Assumption of Risk" executed by plaintiff can be read to exculpate defendants from the consequences of their own negligence (cf. Gross v. Sweet, 49 N.Y.2d 102, 424 N.Y.S.2d 365, 400 N.E.2d 306 [1979] ), there are issues of fact as to whether defendants’ facility offers recreational as well as instructional uses, and therefore as to whether the release is void pursuant to General Obligations Law § 5–326 where plaintiff was allegedly injured during defendant's resistance-band exercise class (see Hsu v. Krav Maga NYC, LLC, 138 A.D.3d 463, 464, 29 N.Y.S.3d 307 [1st Dept. 2016] ). Deposition testimony by the facility's founder shows that defendants’ specialized fitness classes could be considered both instructional and recreational in purpose. Defendants have offered no documentary evidence that General Obligations Law § 5–326 bars enforcement of the release on the ground that their classes were primarily instructional (see Kim v. Harry Hanson, Inc., 122 A.D.3d 529, 530, 997 N.Y.S.2d 391 [1st Dept. 2014] ; Debell v. Wellbridge Club Mgt., Inc., 40 A.D.3d 248, 249–250, 835 N.Y.S.2d 170 [1st Dept. 2007] ).
The records also present factual issues as to whether plaintiff assumed the risks of the class activity (see Latimer v. City of New York, 118 A.D.3d 420, 421, 987 N.Y.S.2d 58 [1st Dept. 2014] ). Plaintiff testified that she was inexperienced in the use of the stretching bands and that the class instructor did not give prior instruction regarding their use. The testimony also raises an issue of fact as to whether plaintiff was given sufficient information to fully appreciate the risks of the specific exercise in question (see id. ).
We have considered defendants’ remaining contentions and find them unavailing.