Fein, etc., v. Cook, 2017 N.Y. App. Div. LEXIS 6607; 2017 NY Slip Op 06603

Fein, etc., v. Cook, 2017 N.Y. App. Div. LEXIS 6607; 2017 NY Slip Op 06603

Randall Fein, etc., Plaintiff-Appellant, v Neil L. Cook, Defendant, Asphalt Green, Inc., Defendant-Respondent.

4478, 110902/10


2017 N.Y. App. Div. LEXIS 6607; 2017 NY Slip Op 06603

September 26, 2017, Decided

September 26, 2017, Entered



COUNSEL: [*1] Clyde & Co., New York (Jeffrey J. Ellis of counsel), for appellant.

Rutherford & Christie, LLP, New York (Michael C. Becker of counsel), for respondent.

JUDGES: Sweeny, J.P., Renwick, Kapnick, Kern, Moulton, JJ.


Order, Supreme Court, New York County (Richard F. Braun, J.), entered August 22, 2016, which granted defendant Asphalt Green, Inc.’s (AGI) motion for summary judgment, to the extent of dismissing the amended complaint as against it, unanimously affirmed, without costs.

Decedent died from injuries sustained when, while in the middle of a crosswalk in Central Park, he was struck by a bike ridden by defendant Neil Cook, a bicyclist and coach employed by AGI, which operates, among other things, a fitness facility on the Upper East Side.

The motion court correctly determined that AGI could not be held vicariously liable for Cook’s alleged negligence, as Cook was acting outside the scope of his employment. At the time of the accident, Cook was engaged in a weekend bicycle ride, in a public park, using a bicycle that he purchased and equipped, was alone and was not coaching anyone, and was not acting in furtherance of any duties owed to AGI (see Riviello v Waldron, 47 NY2d 297, 391 N.E.2d 1278, 418 N.Y.S.2d 300 [1979]; Weimer v Food Merchants, 284 AD2d 190, 726 N.Y.S.2d 423 [1st Dept 2001]).

Cook’s unsupported belief, as set forth in an [*2] affirmative defense, that his bicycle riding had a work component to it, and his unsworn Response to the Notice to Admit (see CPLR 3123[a]), which improperly sought admissions as to employment status, a contested issue central to the action (see Berg v Flower Fifth Ave. Hosp., 102 AD2d 760, 476 N.Y.S.2d 895 [1st Dept 1984]), do not create triable issues of fact as to whether Cook was acting in the scope of employment. Unlike in Aycardi v Robinson (128 AD3d 541, 9 N.Y.S.3d 262 [1st Dept 2015]), relied upon by plaintiff, there is no indication that AGI was exercising any control over Cook at the time of the accident (see Lundberg v State of New York, 25 NY2d 467, 255 N.E.2d 177, 306 N.Y.S.2d 947 [1969]).

The motion court correctly dismissed plaintiff’s direct negligence claim against AGI. There is no evidence that AGI knew or should have known of Cook’s alleged propensity to dangerously ride his bicycle in Central Park, an element necessary to support the claim for negligent hiring and retention (see White v Hampton Mgt. Co. L.L.C., 35 AD3d 243, 244, 827 N.Y.S.2d 120 [1st Dept 2006]), and plaintiff’s conclusory allegations of deficient training are insufficient to defeat summary judgment (see Richardson v New York Univ., 202 AD2d 295, 296-297, 609 N.Y.S.2d 180 [1st Dept 1994]).

We have considered plaintiff’s remaining arguments and find them unavailing.




VeloSwap is coming Up Fast, November 4, 2017

Saturday, November 4, 2017

VeloSwap is for Everyone!!

Buy Tickets Here
If you like biking, you belong at VeloSwap. Every year, every one is invited to the world’s largest consumer bike swap and expo.
Mark your calendar for Denver’s fall tradition: This one-day-only cycling marketplace and festival happens Saturday, Nov. 4, 2017.
Purchase Tickets at Performance Bicycle
All front range Performance Bicycle retailers are selling discounted VeloSwap tickets. Find a shop near you here!

Happenings On Site!

You’ve come to shop and found that killer deal, now what?

  • Demo a bike
  • Visit Bikes Together Educational area
  • Hang out in the VeloLounge
  • Visit with supplier and reps to discuss what the 2018 lines will look like.
  • More…

Plan Your Day!

Not sure how best to maximize your VeloSwap day? Visit our Plan You Day section and get some best practice tips!

Copyright © 2017 VeloSwap, All rights reserved.
You are receiving this e-mail as you have requested information about VeloSwap.Our mailing address is:


3002 Sterling Circle

Boulder, CO 80301

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VeloSwap Online Registration Up 35%, See you there

Saturday, November 4, 2017
Online Consumer Ticket Sales Tracking 35% above Last Year!
Vendor/exhibitor set-up:

Friday, Nov 3, Noon to 7:30 p.m.; Saturday, Nov 4, 6 a.m. to 8:30 a.m.; “Swappers Corner” vendors set up Saturday, Oct. 22 at 8:30 a.m. More infor here: Load-In Information


There’s no more captive audience for unloading anything and everything related to bikes and sports gear than at VeloSwap—the world’s largest consumer bike swap and expo.

But its more…Its the perfect opportunity to collaborate and showcase not only your retail storefront and brands, but to work with the supplier reps to tell the complete story of the brands you carry and the knowledge of your staff. Help your existing customers and, potential new customers, make the best buying decisions for that coveted new ride, be that purchase this year or next.

Copyright © 2017 VeloSwap, All rights reserved.
You are receiving this e-mail as you have been a vendor at VeloSwap in the past.Our mailing address is:VeloSwap

PO Box 818

Woodstock, VT 05071

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2017 Cycling Pro Tour Announced, includes a race in Colorado!




2017 Pro Road Tour schedule announced

(Oct. 20, 2016) – USA Cycling announced Thursday the 2017 Pro Road Tour (PRT) calendar, which features a tighter and more geographically convenient lineup of events since the 2016 merger of the National Racing Calendar (NRC) and National Criterium Calendar (NCC).

“We have had input from the Pro Road Committee and various teams, athletes and race directors, including a sit-down meeting in May, and we feel that this lineup of events is an excellent step in the second year of the Pro Road Tour,” said Micah Rice, Vice President of Events, USA Cycling. “We had a great first year of the PRT last year, and we feel that 2017 will allow for some excellent racing.”

2017 Pro Road Tour:





March 30-April 2

Joe Martin Stage Race

Fayetteville, Ark.

UCI 2.2 M/W

April 8-9

Sunny King Omnium

Anniston, Ala.


April 19-23

Tour of the Gila

Silver City, N.M.

UCI 2.2 M/W

April 30

Dana Point Grand Prix of Cycling

Dana Point, Calif.


May 3-7

Redlands Bicycle Classic

Redlands, Calif.


May 28

Winston-Salem Classic Criterium

Winston-Salem, N.C.


May 29

Winston-Salem Road Race

Winston-Salem, N.C.

UCI 1.1 M/W

June 4

Philadelphia International Cycling Classic

Philadelphia, Pa.

UCI 1.1 Men

June 9-11

Saint Francis Tulsa Tough

Tulsa, Okla.


June 14-18

North Star Grand Prix

Minneapolis, Minn.


July 14

Chrono Kristin Armstrong Time Trial

Boise, Idaho

UCI 1.2 M/W

July 15

ASWB Twilight Criterium

Boise, Idaho


July 19-23

Cascade Classic

Bend, Ore.

UCI 2.2 M/W

July 31-Aug. 6

Larry H. Miller Tour of Utah


UCI 2.HC Men

Aug. 10-13

Tour of Colorado


UCI 2.HC Men

Aug. 19

Rochester Twilight Criterium

Rochester, N.Y.


Aug. 24-27

Tour of the Commonwealth


UCI 2.1 Men

Sept. 1-4

Gateway Cup

St. Louis, Mo.


Sept. 9

Reading 120

Reading, Pa.

UCI 1.2 Men

Sept. 10

Doylestown Criterium

Doylestown, Pa.


Sept. 16

Mayor’s Cup Boston

Boston, Mass.


The revamp of the 2017 calendar aims to eliminate weekends with multiple events and make racing more geographically convenient for teams, allowing them to compete as much as possible from March to September. Given the order and timing of the 2017 PRT, teams can get to a greater amount of races relative to the overall schedule in a more cost-effective manner.

In the event that two or more events fell on the same weekend when creating the 2017 calendar, USA Cycling looked at a number of factors printed as selection criteria in the published bid packet. Size of event, media market/footprint, level of event production, popularity among riders and teams, spectator count—including on-site, broadcast and social media engagement, event history and other criteria were taken into account.

For questions, please contact Rice at



Fox Factory Recalls Mountain Bike Shock Absorbers Due to Fall and Injury Hazards

Hazard: The bicycle’s rear shock absorber outer sleeve can rupture, allowing the sleeve to come in contact with other bicycle parts or the rider, posing a fall and injury hazard.

Remedy: Repair

Consumers should immediately stop using bicycles with the recalled rear shock absorbers and return them to the place of purchase for a free repair. Consumers unable to return their bicycles should contact Fox for instructions on receiving a free repair. 

Name of Product: Mountain bike rear shock absorbers

Consumer Contact: Fox toll-free at 855-360-3488 from 8 a.m. to 5 p.m. PT Monday through Friday, email at or online at and click on the recall link for more information.

Pictures available here:

Units: About 6,100 (in addition, about 1,200 were sold in Canada)

Description: This  recall involves all model year 2016 and some 2017 FLOAT X2 bicycle rear shock absorbers sold both individually and installed on YT, Giant, Pivot, Intense, Ibis, Scott, Trek, GT, Knolly, Norco, Rocky Mountain, Diamondback, Morpheus, Foes Racing, Orbea and Canyon full-suspension mountain bikes and frames. The solid black or black and gold FLOAT X2 shocks have an air sleeve construction. FLOAT X2 is printed on the external reservoir connected to the blue compression and red rebound adjusters that have X2 and RVS laser etched on them. Recalled shocks do not have a “250 psi max” label directly under the air fill boss on the outer sleeve of the shock.  Recalled shocks and bike models can be identified at 

Incidents/Injuries: The firm has received seven reports of the shock absorber outer sleeve rupturing. No injuries have been reported.

Sold at: Independent bike stores nationwide, online at Jenson USA, Pro Bike Supply, Universal Cycles, and other online bike retailers from March 2015 through September 2016. The shocks were installed as original equipment on full-suspension mountain bikes and frames sold for between about $2,700 to $10,000 and sold individually as an aftermarket accessory for about $600.

Manufacturer: Fox Factory, Watsonville, Calif.

Manufactured in: United States

Retailers: If you are a retailer of a recalled product you have a duty to notify your customers of a recall. If you can, email your clients or include the recall information in your next marketing communication to your clients. Post any Recall Poster at your stores and contact the manufacturer to determine how you will handle any recalls.

For more information on this see:

For Retailers

Recalls Call for Retailer Action

A recall leads to lawsuits because injuries are connected to the product being recalled thus a lawsuit. Plaintiff’s hope the three can be connected

Combination of a Products Liability statute, an Expert Witness Report that was just not direct enough and odd facts holds a retailer liable as manufacture for product defect.

Product Liability takes a different turn. You must pay attention, just not rely on the CPSC.

Retailer has no duty to fit or instruct on fitting bicycle helmet

Summary Judgment granted for bicycle manufacturer and retailer on a breach of warranty and product liability claim.

For Manufacturers

The legal relationship created between manufactures and US consumers

A recall leads to lawsuits because injuries are connected to the product being recalled thus a lawsuit. Plaintiff’s hope the three can be connected

Combination of a Products Liability statute, an Expert Witness Report that was just not direct enough and odd facts holds a retailer liable as manufacture for product defect.

What do you think? Leave a comment.

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Author: Outdoor Recreation Insurance, Risk Management and Law

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Copyright 2016 Recreation Law (720) Edit Law


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#AdventureTourism, #AdventureTravelLaw, #AdventureTravelLawyer, #AttorneyatLaw, #Backpacking, #BicyclingLaw, #Camps, #ChallengeCourse, #ChallengeCourseLaw, #ChallengeCourseLawyer, #CyclingLaw, #FitnessLaw, #FitnessLawyer, #Hiking, #HumanPowered, #HumanPoweredRecreation, #IceClimbing, #JamesHMoss, #JimMoss, #Law, #Mountaineering, #Negligence, #OutdoorLaw, #OutdoorRecreationLaw, #OutsideLaw, #OutsideLawyer, #RecLaw, #Rec-Law, #RecLawBlog, #Rec-LawBlog, #RecLawyer, #RecreationalLawyer, #RecreationLaw, #RecreationLawBlog, #RecreationLawcom, #Recreation-Lawcom,, #RiskManagement, #RockClimbing, #RockClimbingLawyer, #RopesCourse, #RopesCourseLawyer, #SkiAreas, #Skiing, #SkiLaw, #Snowboarding, #SummerCamp, #Tourism, #TravelLaw, #YouthCamps, #ZipLineLawyer, Recall, CPSC, Consumer Product Safety Council, Mountain Biking, Shock, Rear Shock, Fox, Cycling



2017 National Championships calendar announced


2017 National Championships calendar announced

(Sept. 30, 2016) – USA Cycling announced its 2017 National Championships calendar rundown on Friday, which includes dates and locations of 14 events over 10 months next year.

“The 2017 calendar of national championship events pairs our top annual races with very worthy host cities,” said USA Cycling CEO Derek Bouchard-Hall. “Our events range from coast to coast, north to south and everywhere in between. We are thrilled to bring our national championships to cycling fans in nearly every corner of the country.”

The 2017 National Championship calendar includes events in cyclocross, mountain bike, road and track. BMX events will be announced at a later date.

2017 USA Cycling National Championships calendar:

Date Event Location
January 3-8 Cyclocross Hartford, Conn.
January 28 Fat Bike Grand Rapids, Mich.
May 4-7 Collegiate & Para-Cycling Road Grand Junction, Colo.
May 7 Marathon Mountain Bike Arkadelphia, Ark.
June 1-4 Volkswagen Masters Road Columbia County, Ga.
June 20-25 (tentative) Masters Track Rock Hill, S.C.
June 23-25 Volkswagen Pro Road & TT Knoxville, Tenn.
June 29-July 2 Amateur Road presented by Papa John’s Louisville, Ky.
June 29-July 2 Volkswagen Pro Crit & Team Time Trial Louisville, Ky.
July 19-23 Volkswagen Mountain Bike Snowshoe, W. Va.
July 31-August 6 Elite & Junior Track Carson, Calif.
August 12 Hill Climb Colorado Springs, Colo.
September 14-16 Collegiate Track Indianapolis, Ind.
October 20-22 Collegiate Mountain Bike Missoula, Mont.

Collaborating closely with partners in Winston-Salem, USA Cycling and Winston-Salem have mutually agreed to move Masters Road National Championships to Columbia County, Ga., and Para-Cycling Road National Championships to Grand Junction, Colo., to be run with Collegiate Road National Championships. This move will allow Winston-Salem to focus on continuing to build its exciting UCI 1.1 Winston-Salem Cycling Classic while ensuring that USA Cycling delivers an excellent customer experience for our important Master and Para-Cycling athletes. Para-Cycling Road National Championships will run May 4-7, while Masters Road National Championships will be June 1-4 and will feature the iconic Fort Gordon Hills Road Race course and the time trial at Clarks Hill Lake.

The Volkswagen Professional Criterium and Team Time Trial National Championships will join Amateur Road National Championships in Louisville, Ky. June 29-July 2 after the Blue Grass State hosted a successful 2016 Amateur Road National Championships over the summer.

For questions, please contact National Events Vice President Micah Rice at mrice.


Mississippi retailer not liable for injury to a child who rode a bicycle through aisles he found on the store floor.

Attempts by the plaintiff to re-characterize stands and racks did not get past the judge. However, in many cases, the way a plaintiff casts a product can later define how the jury sees the case.

Wilson v. Wal-Mart Stores, Inc., 161 So. 3d 1128; 2015 Miss. App. LEXIS 216

State: Mississippi, Court of Appeals of Mississippi

Plaintiff: Seth Wilson, by and Through His Mother and Next Friend, Suzette Wilson Purser

Defendant: Wal-Mart Stores, Inc.

Plaintiff Claims: Premises Liability

Defendant Defenses: No duty

Holding: For the Defendant Retailer

Year: 2015

This is a screwy little case, but worth the effort. A family, Step-Father, mother and two sons went into a Wal-Mart to buy a basketball. While there, the two sons walked over to the bicycle aisle and proceeded to ride two bicycles they found through the aisles.

One brother, in attempting to put a bicycle back in the rack, slowed down. The other brother was not used to hand breaks, maneuvered around the brother riding into a shelf where he suffered a cut on his leg.

They both got on bicycles that were on the bicycle rack, and started riding up and down the aisles nearby. The bicycle Seth rode was on the ground when he found it, with its front wheel pushed under the rack and its back wheel in the aisle. Seth was following Wyatt on his bicycle when Wyatt slowed down to put the bicycle he was riding away. Seth was forced to go around him because he was “going real fast” and “[could not] figure out how to stop.” He tried to brake using the pedals, but the bicycle only had handbrakes. Unable to stop, Seth ran into a wall and cut his leg on a shelf. The cut was deep and required stitches.

Of note was the statement that the employee assigned to the area was absent and there were no signs posted prohibiting the use of the bicycles.” (So bars now need to put up signs no drinking from the tap without paying for the product first?). The employee assigned to the department was outside at the time of the accident, and no signs were posted prohibiting the use of the bicycles or otherwise warning of any danger.”

The defendant was ten at the time of the injury so whether or not signs were posted probably would not have made a difference. And it seems that allowing children to ride bikes through the aisles at Wal-Mart in Mississippi is a common practice, which sort of blows my mind.

The injured child’s mother filed a lawsuit on his behalf, since he was a minor, and sued Wal-Mart based on a premise’s liability theory. Wal-Mart filed a motion for summary judgment stating there was no genuine issue of material fact showing that there was a dangerous condition that Wal-Mart should have warned about.

The motion was granted, and the plaintiff appealed the decision.

Analysis: making sense of the law based on these facts.

The court first looked at the premises’ liability law that the plaintiff claimed had been breached by Wal-Mart. To prove his case the plaintiff must show that he was an invitee, the duty owed to him based on his status and whether Wal-Mart breached that duty.

Seth’s premises-liability claim, this Court must (1) determine the status of the injured person as either an invitee, licensee, or trespasser, (2) assess, based on the injured party’s status, what duty the landowner or business operator owed to the injured party, and (3) determine whether the landowner or business operator breached the duty owed to the injured. 

Because the plaintiff was there with his parents to purchase a basketball, he was defined as an invitee. As such, the duty of a land owner (or retailer) was to keep the premises reasonably safe and when not reasonably safe, to warn of the hidden dangers. If the peril were in plain and open view, there is no duty to warn of them.

To succeed in a premises-liability action, Seth must prove one of the following: “(1) a negligent act by [Wal-Mart] caused [his] injury; or, (2) that [Wal-Mart] had actual knowledge of a dangerous condition, but failed to warn [him] of the danger; or, (3) the dangerous condition remained long enough to impute constructive knowledge to [Wal-Mart].”

Is a bicycle on display at a retailer a dangerous condition? The plaintiff argued the bicycle should have been locked up so the plaintiff could not ride it. The bicycle was not in a rack at the time the plaintiff found the bike.

He argues that (1) Wal-Mart’s possession of a rack on which to clamp the bicycles, (2) the assignment of an employee to the toy department, and (3) evidence of other children on bicycles in the same aisle at the same Wal-Mart show that unlocked or readily accessible bicycles created a dangerous condition, and that Wal-Mart knew about it and failed to warn its patrons. He cites to no authority to support his position, and nothing in the record supports these allegations.

The plaintiff then characterized the rack that the bike should have been in as a “safety rack.” However, the court caught on to that maneuver and reviewed the operation of the rack and the manufacturer’s description and found the rack was designed only to hold bikes, not to prevent them from being moved.

Seth refers to the rack where the bicycles could be clamped as a safety rack, but there is nothing in the record to indicate that the purpose for the rack was to protect its patrons from the alleged danger posed by unlocked or readily accessible bicycles. The record contains installation instructions for the rack, which were prepared by VIDIR Machine Inc., a vertical storage company, and refers to the rack as a carrier or bike-merchandising system only. The rack does not contain a locking mechanism, and holds bicycles in place utilizing a tire clamp

The plaintiff argued that since the bikes would be difficult to remove from the rack, an employee would need to be there to make sure the bikes were removed properly and only when allowed.

However, the entire argument failed. No employee was stationed at the rack to guard against removing bikes. Other children rode bikes in the aisle without incidence, which indicated there was no real danger and no evidence of a standard was presented indicating a requirement to lock up bikes on the show floor.

Additionally, there is nothing in the record to indicate the assignment of an employee to the toy department was for the purpose of guarding against any known danger; and evidence that other children rode bicycles in the same aisle in the same Wal-Mart without incident does not, in and of itself, tend to show that unlocked or readily accessible bicycles pose a danger. Seth provided no evidence of the industry’s standards, no expert reports, and no evidence of Wal-Mart’s policy regarding who may remove the bicycles from the rack and whether its employees were required to.

The plaintiff then argued a higher duty was owed to the plaintiff because he was a minor. However, the duty owed under a premise’s liability act does not change due to the age of the invitee. The plaintiff also knew how to ride a bicycle and learned at the age of five. The plaintiff had also been involved in numerous bicycle accidents prior to the one that injured him at the retailers’ premises.

An unlocked bicycle was found not to present a dangerous condition such that a warning had to be posted by the retailer about the risk to the consumers.

So Now What?

The first issue which was handled quickly by the court was the attempt by the plaintiff to characterize something as different than it actually was. By calling the bike rack a safety rack the plaintiff could place in the juries mind a requirement that did not exist. It is important that these issues not be allowed to explode and create liability just because thclip_image002_thumb.jpge plaintiff miss-labels part of the case.

Another issue is the fact that parents allow their kids to ride bicycles through the aisles of stores, and the retailer does not put a stop to it. What if the plaintiff had hit another patron rather than a shelf?

As always, the issue of putting warning signs up so people who can’t read, can be protected always makes me wonder. Warning if you are unable to read this sign, please find someone to read it to you. Seriously the entire world is going to be nothing but signs if this continues.

Thankfully, the retailer was not liable for the actions of an inattentive parent for the injuries of their child riding a bike down a store aisle.

What do you think? Leave a comment.

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Author: Outdoor Recreation Insurance, Risk Management and Law

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Copyright 2016 Recreation Law (720) Edit Law


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#AdventureTourism, #AdventureTravelLaw, #AdventureTravelLawyer, #AttorneyatLaw, #Backpacking, #BicyclingLaw, #Camps, #ChallengeCourse, #ChallengeCourseLaw, #ChallengeCourseLawyer, #CyclingLaw, #FitnessLaw, #FitnessLawyer, #Hiking, #HumanPowered, #HumanPoweredRecreation, #IceClimbing, #JamesHMoss, #JimMoss, #Law, #Mountaineering, #Negligence, #OutdoorLaw, #OutdoorRecreationLaw, #OutsideLaw, #OutsideLawyer, #RecLaw, #Rec-Law, #RecLawBlog, #Rec-LawBlog, #RecLawyer, #RecreationalLawyer, #RecreationLaw, #RecreationLawBlog, #RecreationLawcom, #Recreation-Lawcom,, #RiskManagement, #RockClimbing, #RockClimbingLawyer, #RopesCourse, #RopesCourseLawyer, #SkiAreas, #Skiing, #SkiLaw, #Snowboarding, #SummerCamp, #Tourism, #TravelLaw, #YouthCamps, #ZipLineLawyer, Wal-Mart, Bicycle, Store Aisle, Premises Liability Act, Premises Liability, Invitee, Cycling, Dangerous Condition, No Duty, Failure  to Warn,