Release and assumption of the risk are both used to defeat a para-athlete’s claims when she collided with a runner on the cycling portion of the course
Posted: September 12, 2016 Filed under: Assumption of the Risk, Cycling, New York, Racing, Release (pre-injury contract not to sue) | Tags: #race, Central Park, New York, New York City, Para-Athlete, Triathalon Leave a commentA good procedure for tracking releases and bibs help prove the plaintiff had signed the release when she denied that fact in her claims.
State: New York, Supreme Court of New York, New York County
Plaintiff: SUPREME COURT OF NEW YORK, NEW YORK COUNTY
Defendant: City of New York, Korff Enterprises, Inc., and Central Park Conservancy
Plaintiff Claims: negligently permitted and/or allowed a non-participant jogger to enter upon the race course and violently collide with Hines.
Defendant Defenses: Release
Holding: For the Defendant
Year: 2016
This was a simple case where a triathlon course was closed, but a jogger ran into a cyclist. However, there was one quirk. The cyclist was para-athlete riding a push-rim racer.
Hines, an experienced para-athlete, claims she was injured during the running portion of the triathlon when she was operating a push-rim racer and was struck by an alleged non-participant jogger. The accident occurred in Central Park at or around West 100th Street and West Drive.
Although the rights of a para-athlete are identical to those of any other athlete, it is interesting to see if either side used the issue legally to their advantage. Neither did.
The plaintiff sued for her injuries.
Analysis: making sense of the law based on these facts.
The court first looked at how releases are viewed under New York law. New York has a statute voiding releases if those places using them are places of amusement charging for admission. See New York Law Restricting the Use of Releases.
§ 5-326. Agreements exempting pools, gymnasiums, places of public amusement or recreation and similar establishments from liability for negligence void and unenforceable
However, the court found since this was a race it was not an admission fee but a participation fee; the statute did not apply.
Contractual agreements to waive liability for a party’s negligence, although frowned upon, are generally enforceable where not expressly prohibited by law Language relieving one from liability must be unmistakable and easily understood. The waiver at issue here clearly and unequivocally ex-presses the intention of the parties to relieve defendants of liability for their own negligence and because the entry fee paid by Hines was for her participation in the triathlon, not an admission fee allowing her to use the public park and roadway where her accident allegedly occurred, the waiver does not violate General Obligations Law § 5-326
The next issue was the plaintiff claimed that she did not sign the release. However, the husband under oath testified that the release could have been his wife’s. “George Hines, who as a party to the action is an interested witness, testified that he believed the signature on the waiver was Hines’.”
In addition, the procedures at the beginning of the race required a racer’s signature. A racer did not get a bib until they had signed the release and proving their identify.
Moreover, as defendants point out, athletes could not participate in the triathlon without signing the waiver in person and presenting photographic identification at a pre-race expo and Hines was seen by non-party witness Kathleen Bateman of Achilles International, Inc. at the expo waiting in line with her handlers to pick up her race bib.
Whether the identification and procedures are in place to prevent fraud in case of an accident and subsequent suit or to prevent fraud among the racers is not clear.
The plaintiff also claimed the defendant was negligent in their cone placement and location of race marshals. She argued the cones should have been placed closer together.
On this claim, the court argued the plaintiff had assumed the risk by racing.
Moreover, the primary assumption of the risk doctrine provides that a voluntary participant in a sporting or recreational activity “consents to those commonly appreciated risks which are inherent in and arise out of the nature of the sport generally and flow from such participation” and it is “not necessary to the application of [the doctrine] that the injured plaintiff have foreseen the exact manner in which his or her injury occurred, so long as the he or she is aware of the potential for injury of the mechanism from which the injury results”
The application of the doctrine of assumption of risk is to be applied based upon the background, skill and experience of the plaintiff. In this case, the plaintiff had considerable experience racing in triathlons.
Awareness of risk, including risks created by less than optimal “is not to be determined in a vacuum” but, rather, “against the background of the skill and experience of the particular plaintiff”. Hines is a highly decorated and highly experienced para-athlete who participated in dozens races over her career, many of which took place in Central Park. Hines’ testimony that other race courses in Central Park were set up differently and delineated with cones and marshals differently than the way in which defendants allegedly set up the triathlon course establishes that Hines was aware that collisions with non-participants were an inherent risk in participating in a triathlon in Central Park.
Because the plaintiff was experienced in racing in triathlons and signed a release her claims were barred.
So Now What?
This case resolved around whether or not the defendant could prove the plaintiff had signed a release, when denied she had signed it. By having procedures set that proved who the person was and not allowing the person to receive a bib, and consequently, race, until a release had been signed was pivotal.
On top of that when a party to the suit, in this case the husband admitted the signature could have been the plaintiffs the court took that statement as an admittance against interest. The husband was a litigant because he was claiming damages as a spouse. A spouse’s claim, as in this case are derivative of the other spaces main claims. That means the plaintiff spouse must prove her claims or the derivative claims also fail.
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Hines v. City of New York, Korff Enterprises, Inc., 2016 N.Y. Misc. LEXIS 1015; 2016 NY Slip Op 30504(U)
Posted: September 11, 2016 Filed under: Cycling, Legal Case, New York, Racing, Release (pre-injury contract not to sue) | Tags: Central Park, New York City, NYC, Triathlon Leave a commentHines v. City of New York, Korff Enterprises, Inc., 2016 N.Y. Misc. LEXIS 1015; 2016 NY Slip Op 30504(U)
[**1] Helene Hines and George Hines, Plaintiffs, -against- City of New York, Korff Enterprises, Inc., and Central Park Conservancy, Defendants. Index No. 151542-2012
151542-2012
SUPREME COURT OF NEW YORK, NEW YORK COUNTY
2016 N.Y. Misc. LEXIS 1015; 2016 NY Slip Op 30504(U)
March 24, 2016, Decided
NOTICE: THIS OPINION IS UNCORRECTED AND WILL NOT BE PUBLISHED IN THE PRINTED OFFICIAL REPORTS.
CORE TERMS: triathlon, cones, marshal, issues of fact, non-participant, collision, summary judgment, participating, placement, signature, triable, expert’s opinion, prima facie, enforceable, admissible, proponent, sport, feet, matter of law, personal injuries, party opposing, causes of action, grossly negligent, intentional wrongdoing, inherent risk, unanticipated, collectively, para-athlete, experienced, entitlement
JUDGES: [*1] HON. GEORGE J. SILVER, J.S.C.
OPINION
DECISION/ORDER
HON. GEORGE J. SILVER, J.S.C.
In this action to recover for personal injuries allegedly sustained by plaintiff Helene Hines (Hines) in the 2011 Nautical New York City Triathlon (triathlon) defendants City of New York, Korpff Enterprises, Inc. and Central Park Conservancy (collectively defendants) move pursuant to CPLR § 3212 for an order granting them summary judgment dismissing the complaint. Hines and her husband, plaintiff George Hines (collectively plaintiffs), who asserts a derivative claim, oppose the motion.
Hines, an experienced para-athlete, claims she was injured during the running portion of the triathlon when she was operating a push-rim racer and was struck by an alleged non-participant jogger. The accident occurred in Central Park at or around West 100th Street and West Drive. The bill of particulars alleges that the defendants were negligent in the ownership, operation, management, maintenance, control and supervision of the incident location in that defendants negligently permitted and/or allowed a non-participant jogger to enter upon the race course and violently collide with Hines. Prior to the triathlon, all participants were required [*2] to sign a liability waiver in person before receiving their race packet and race bibs. Defendants argue that Hines signed the waiver and by doing so expressly assumed the risk of a collision. The waiver, entitled “Event Registration, Release and Waiver of Liability, Assumption of Risk and Indemnity Agreement”, states:
[**2] I HEREBY ACKNOWLEDGE AND ASSUME ALL OF THE RISKS OF PARTICIPATING IN THIS EVENT. . . . I also assume any and all other risks associated with participating in this Event, including but not limited to the following: falls, dangers of collisions with vehicles, pedestrians, other participants and fixed objects; the dangers arising from surface hazards, tides, equipment failure, inadequate safety equipment; and hazard that may be posed by spectators or volunteers; and weather conditions. I further acknowledge that these risks include risks that may be the result of ordinary negligent acts, omissions, and/or carelessness of the Released Parties, as defined herein. I understand that I will be participating in the Event at my own risk, that I am responsible for the risk of participation in the Event.
The waiver further states:
I WAIVE, RELEASE AND FOREVER DISCHARGE Event Producer, [*3] World Triathlon Corporation, the Race Director, USA Triathlon . . . the City of New York, Event sponsors, Event Organizers, Event promoters, Event producers, race directors . . . all other persons or entities involved with the Event, and all state, city, town, county, and other governmental bodies, and/or municipal agencies whose property and/or personnel are used and/or in any way assist in locations in which the Event or segments of the Event take place . . . from any and all claims, liabilities of every kind, demands, damages . . . , losses . . . and causes of action, of any kind or any nature, which I have or may have in future . . . that may arise out of, result from, or relate to my participation in the Event . . . including my death, personal injury, partial or permanent disability, negligence, property damage and damages of any kind, . . . even if any of such claims Claims are caused by the ordinary negligent acts, omissions, or the carelessness of the Released Parties.
Hines denies signing the waiver and argues in the alternative that the waiver violates General Obligations Law § 5-326 because she paid a fee to participate in the triathlon. Hines also contends that defendants created and enhanced an unanticipated [*4] risk within the running portion of the triathlon by inappropriately situating cones and improperly stationing marshals in the area of her accident. Hines argues that she expected, based upon her past triathlon experience, that cones would be separated 20 feet apart and that marshals would be readily apparent within the areas between the cones. Instead, plaintiff claims the cones were separated 70 feet apart and there were no marshals present in the area where her accident occurred. Hines contends that defendants, through there setup of the race course, heightened the risk of non-participants interfering with the race and that she did not assume such heightened risks when she entered the triathlon. According to Hines’ athletic administration and safety management expert, [**3] the placement of cones 70 feet apart limited the sight lines of bystanders walking toward the race and increased the probability of confusion and misapprehension. Hines’ expert also contends that on a race course that traverses a highly populated area marshals must be easily seen and heard on the course. According to Hines’ expert, defendants’ failure to properly delineate the race course with appropriately spaced [*5] cones and to properly position marshals between the cones were deviations from accepted sports safety practices which proximately caused Hines’ accident.
To obtain summary judgment, the movant must establish its cause of action or defense sufficiently to warrant the court as a matter of law in directing judgment in its favor (CPLR § 3212 [b]; Bendik v Dybowski, 227 AD2d 228, 642 N.Y.S.2d 284 [1st Dept 1996]). This standard requires that the proponent of a motion for summary judgment make a prima facie showing of entitlement to judgment as a matter of law by advancing sufficient “evidentiary proof in admissible form” to demonstrate the absence of any material issues of fact (Winegrad v New York Univ. Med. Ctr., 64 NY2d 851, 853, 476 NE2d 642, 487 NYS2d 316 [1985]; Zuckerman v City of New York, 49 NY2d 557, 562, 404 NE2d 718, 427 NYS2d 595 [1980]; Silverman v Perlbinder, 307 AD2d 230, 762 N.Y.S.2d 386 [1st Dept 2003]; Thomas v Holzberg, 300 AD2d 10, 11, 751 N.Y.S.2d 433 [1st Dept 2002]). Thus, the motion must be supported “by affidavit [from a person having knowledge of the facts], by a copy of the pleadings and by other available proof, such as depositions” (CPLR § 3212 [b]).
To defeat a motion for summary judgment, the opposing party must show facts sufficient to require a trial of any issue of fact (CPLR § 3212 [b]). Thus, where the proponent of the motion makes a prima facie showing of entitlement to summary judgment, the burden shifts to the party opposing the motion to demonstrate by admissible evidence the existence of a factual issue requiring a trial of the action, or to tender an acceptable [*6] excuse for his or her failure to do so (Vermette v Kenworth Truck Co., 68 NY2d 714, 717, 497 NE2d 680, 506 NYS2d 313 [1986]; Zuckerman, 49 NY2d at 560, 562; Forrest v Jewish Guild for the Blind, 309 AD2d 546, 765 N.Y.S.2d 326 [1st Dept 2003]). Like the proponent of the motion, the party opposing the motion must set forth evidentiary proof in admissible form in support of his or her claim that material triable issues of fact exist (Zuckerman, 49 NY2d at 562). The opponent “must assemble and lay bare [its] affirmative proof to demonstrate that genuine issues of fact exist” and “the issue must be shown to be real, not feigned, since a sham or frivolous issue will not preclude summary relief” (Kornfeld v NRX Technologies, Inc., 93 AD2d 772, 461 N.Y.S.2d 342 [1st Dept 1983], affd, 62 NY2d 686, 465 NE2d 30, 476 NYS2d 523 [1984]). Mere conclusions, expressions of hope or unsubstantiated allegations or assertions are insufficient (Alvord and Swift v Stewart M Muller Constr. Co., 46 NY2d 276, 281-82, 385 NE2d 1238, 413 NYS2d 309 [1978]; Fried v Bower & Gardner, 46 NY2d 765, 767, 386 NE2d 258, 413 NYS2d 650 [1978]; Plantamura v Penske Truck Leasing, Inc., 246 AD2d 347, 668 N.Y.S.2d 157 [1st Dept 1998]). Summary judgment is a drastic remedy that should only be employed where no doubt exists as to the absence of triable issues (Leighton v Leighton, 46 AD3d 264, 847 N.Y.S.2d 64 [1st Dept 2007]). The key to such procedure is issue-finding, rather than issue-determination (id.).
Contractual agreements to waive liability for a party’s negligence, although frowned upon, are generally enforceable where not expressly prohibited by law (Gross v Sweet, 49 NY2d 102, 105, 400 NE2d 306, 424 NYS2d 365 [1979]). Language relieving one from liability must be unmistakable and easily understood. (id. at 107). The waiver at issue here clearly and [**4] unequivocally expresses the intention of the parties to relieve defendants of liability for their own negligence (Schwartz v Martin, 82 AD3d 1201, 919 N.Y.S.2d 217 [2d Dept 2011]) and [*7] because the entry fee paid by Hines was for her participation in the triathlon, not an admission fee allowing her to use the public park and roadway where her accident allegedly occurred, the waiver does not violate General Obligations Law § 5-326 (see Brookner v New York Roadrunners Club, Inc., 51 AD3d 841, 858 N.Y.S.2d 348 [2d Dept 2008]).
With respect to the signature on the waiver, while the opinion of defendants’ forensic expert is inadmissible, an expert’s opinion is not required to establish that the signature on the waiver is Hines’ (see John Deere Ins. Co. v GBE/Alasia Corp., 57 AD3d 620, 869 N.Y.S.2d 198 [2d Dept 2008] [defendant failed to submit an affidavit of a handwriting expert or of a lay witness familiar with defendant’s handwriting to establish that the signature on the agreement was not hers]). George Hines, who as a party to the action is an interested witness, testified that he believed the signature on the waiver was Hines’. Moreover, as defendants point out, athletes could not participate in the triathlon without signing the waiver in person and presenting photographic identification at a pre-race expo and Hines was seen by non-party witness Kathleen Bateman of Achilles International, Inc. at the expo waiting in line with her handlers to pick up her race bib. In opposition to defendants’ prima facie showing that Hines signed the enforceable waiver, Hines’ bald, [*8] self-serving claim that she did not sign it, which is not supported by an expert’s opinion, does not raise a triable issue of fact (see Abrons v 149 Fifth Ave. Corp., 45 AD3d 384, 845 N.Y.S.2d 299 [1st Dept 2007]; Peyton v State of Newburgh, Inc., 14 AD3d 51, 786 N.Y.S.2d 458 [Pt Dept 2004]).
Although an enforceable release will not insulate a party from grossly negligent conduct, the alleged acts of defendants with respect to the placement of cones and the stationing of marshals in the area where Hines’ accident occurred do not rise to the level of intentional wrongdoing or evince a reckless indifference to the rights of others (Schwartz, 82 AD3d at 1202 [alleged acts of negligence did not rise to the level of intentional wrongdoing where a marshal at a bicycle race was injured by a non-participant bicyclist]). Hines’ expert expressly states that defendants’ actions with respect to the placement of cones and marshals were deviations from accepted sports safety practices. Thus, Hines’ expert’s opinion is that defendants were merely negligent, not grossly negligent.
Hines has also failed to raise a triable issue of fact as to whether the placement of cones and marshals by defendants improperly enhanced an unanticipated risk of collision. Hines’ expert’s affidavit fails to establish the foundation or source of the standards underlying the expert’s conclusion that [*9] the placement and positioning of cones and marshals along the running portion of the triathlon was negligent and, as such, the affidavit lacks probative value (see David v County of Suffolk, 1 NY3d 525, 526, 807 NE2d 278, 775 NYS2d 229 [2003]). Moreover, the primary assumption of the risk doctrine provides that a voluntary participant in a sporting or recreational activity “consents to those commonly appreciated risks which are inherent in and arise out of the nature of the sport generally and flow from such participation” (Morgan v State of New York, 90 NY2d 471, 484, 685 NE2d 202, 662 NYS2d 421 [1997]) and it is “not necessary to the application of [the doctrine] that the injured plaintiff have foreseen the exact manner in which his or her injury occurred, so long as the he or she is aware of the potential for injury of the mechanism from which the injury results” (Maddox, 66 NY2d 270, 278, 487 NE2d 553, 496 NYS2d 726 [1985]). Awareness of risk, including risks created by less than optimal conditions [**5] (Latimer v City of New York, 118 AD3d 420, 987 N.Y.S.2d 58 [1st Dept 2014]), “is not to be determined in a vacuum” (Morgan, 90 NY2d at 486) but, rather, “against the background of the skill and experience of the particular plaintiff” (id.). Hines is a highly decorated and highly experienced para-athlete who participated in dozens races over her career, many of which took place in Central Park. Hines’ testimony that other race courses in Central Park were set up differently and delineated with [*10] cones and marshals differently than the way in which defendants allegedly set up the triathlon course establishes that Hines was aware that collisions with non-participants were an inherent risk in participating in a triathlon in Central Park. Hines also testified that she was wearing a helmet at the time of the accident, further proof that she was aware that collisions of some type, whether with participants, non-participants or objects, were an inherent risk of participating in the race. “Inherency is the sine qua non” (Morgan, 90 NY2d at 484-486) and regardless of how defendants situated cones and marshals along the race course, Hines was fully aware of and fully appreciated the inherent risk of injury resulting from a collision during the triathlon. Defendants, therefore, are entitled to summary dismissal of the complaint.
Accordingly, it is hereby
ORDERED that defendants’ motion for summary judgment is granted and the complaint is dismissed in its entirety; and it is further
ORDERED that the Clerk is directed to enter judgment accordingly; and it is further
ORDERED that movants are to serve a copy of this order, with notice of entry, upon plaintiffs within 20 days of entry.
Dated: 3/24/16
New York County
/s/ [*11] George J. Silver
George J. Silver, J.S.C.
New York judge uses NY law to throw out claim for gross negligence because the facts did not support the claim. The release stopped the claims the plaintiff suffered running in a half marathon.
Posted: March 3, 2014 Filed under: New York, Racing, Release (pre-injury contract not to sue) | Tags: #race, Gross negligence, Half Marathon, Inc. Road Runners Club Of America, Jogging, Negligence, New York, New York City, New York City Department of Parks and Recreation, New York Road Runners, Plaintiff, Road Runners Club of America, Runner, running, Running Race, The City of New York 1 CommentThe plaintiff slipped and fell on ice while trying to leave the course to tie his shoe. He sued the City of New York, NYC Department of Parks, New York Road Runners, Inc. and Road Runners Club of America for his injuries. He alleged gross negligence for having him leave the course if he had a problem where he fell on ice.
Zuckerman v. The City of New York, 2011 N.Y. Misc. LEXIS 465; 2011 NY Slip Op 30410(U)
Plaintiff: Jonathan Zuckerman
Defendant: The City of New York, New York City Department of Parks and Recreation, New York Road Runners, Inc. and Road Runners Club Of America
Plaintiff Claims: negligence and gross negligence
Defendant Defenses: release
Holding: for the defendants
At the beginning of this half marathon that ran through Central Park in New York City, the plaintiff was instructed with other runners to leave the course if they had a problem. This was done so runners would not run into each other.
The plaintiff was an experienced runner who had participated in 100 events. During the race, he left the course to tie his shoe. He slipped on ice next to the course suffering this injury.
The release in this case was short; however, it was long enough to cover the important points according to the court. The release specifically mentioned “falls” as a risk of the activity and had the plaintiff agree to release claims due to negligence.
The release was signed by the plaintiff electronically. The signors had to elect to accept the terms or reject the terms. If they runner rejected the terms of the release, they could not register for the race.
Summary of the case
The court started by looking at the legal requirements in New York that affect the validity of a release.
Contractual agreements to waive liability for a party’s negligence, although frowned upon, are generally enforceable were not expressly prohibited by law.
Language relieving one from liability must be unmistakable and easily understood.
Agreements to indemnify for gross negligence or willful behavior, however, are void.
The court also defined the requirements to support a claim for gross negligence in an effort to overcome a release. “Gross negligence, when invoked to pierce an agreed-upon limitation of liability . . . must smack of intentional wrongdoing . . . that evinces a reckless indifference to the rights of others.”
It is refreshing to see the court recognize the claim as one trying to evade the release as a defense. The court stated, “I need only address whether there exist factual issues as to whether NYRR was grossly negligent and whether the accident was outside the scope of the waiver.”
The court reviewed the release and found the risk the plaintiff undertook was specifically identified in the release, a fall. The court also found the instructions the race official gave to the participants to leave the race course were reasonable. There was no greater liability attributed to the race promoter for having runners leave the course because to fail to do so would have runners running into each other on the course.
Having looked at the facts and the release, the court found that gross negligence could not reasonably be drawn from those facts.
City of New York’s Motions
The City of New York moved to amend its complaint to include the defense of Release. The city was named in the release as an entity to be protected by the release but had not pled the defense of release. As such the court had to grant the cities motion to amend its answer so it could plead the additional defense.
In another action that is rarely done in courts, the court reviewed the law on granting motions to amend and then granted the motion. The court then said since it had already ruled that a release stopped the plaintiff’s claims against the sponsor, it would also stop the plaintiff’s claims against the city and dismissed the city from the case.
So Now What?
It is rare to see a court take the initiative to do undertake these two actions. The first to throw out the gross negligence claims and the second to throw out the negligence claims of the city without a motion for summary judgment. Courts are reluctant to take such acts or the rules of civil procedure will not allow a court to do so.
The decision is also valuable because it defines what gross negligence is in New York.
Here an electronic release that was well written stopped the plaintiff’s claims against the race promoter and the entities the release also protected.
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Zuckerman v. The City of New York, 2011 N.Y. Misc. LEXIS 465; 2011 NY Slip Op 30410(U)
Posted: March 3, 2014 Filed under: Legal Case, New York, Racing, Racing, Release (pre-injury contract not to sue) | Tags: #race, Gross negligence, Half Marathon, Inc. Road Runners Club Of America, Jogging, New York, New York City, New York City Department of Parks and Recreation, New York Road Runners, Plaintiff, Road Runners Club of America, Runner, running, Running Race, The City of New York Leave a commentZuckerman v. The City of New York, 2011 N.Y. Misc. LEXIS 465; 2011 NY Slip Op 30410(U)
[**2] Jonathan Zuckerman, Plaintiff, -against- The City of New York, New York City Department of Parks and Recreation, New York Road Runners, Inc. and Road Road Runners Club Of America, Defendants.
105044/2010
SUPREME COURT OF NEW YORK, NEW YORK COUNTY
2011 N.Y. Misc. LEXIS 465; 2011 NY Slip Op 30410(U)
February 18, 2011, Decided
February 23, 2011, Filed
NOTICE: THIS OPINION IS UNCORRECTED AND WILL NOT BE PUBLISHED IN THE PRINTED OFFICIAL REPORTS.
CORE TERMS: runner, marathon, gross negligence, affirmative defense, amend, enforceable, reply, factual issues, participating, oppose, ice, exit, nunc pro tunc, risks associated, reckless indifference, grossly negligent, collectively, spectators, humidity, website, weather, traffic, invoked, waive, heat, void, registration, disbursements, encompassed, registrant
COUNSEL: [*1] For Plaintiff: Frank Taubner, Esq., Jasne & Florio, LLP, White Plains, NY.
For defendant NYRR: Deborah Peters Jordan, Esq., Havkins, Rosenfeld et al, New York, NY.
For defendant City: Anthony Bila, ACC, Michael A. Cardozo, Corporation Counse, New York, NY.
JUDGES: Barbara Jaffe, JSC.
OPINION BY: Barbara Jaffe
OPINION
DECISION & ORDER
By notice of motion dated August 20, 2010, defendants New York Road Runners, Inc. and Road Runners Club of America (collectively, NYRR) move pursuant to CPLR 3212 for an order summarily dismissing the complaint, and defendant Road Runners Club of America, Inc. (RRCA) moves pursuant to CPLR 3211(c) for an order dismissing the complaint. Plaintiff opposes as to NYRR, and does not oppose as to RRCA. Defendants City and New York City Department of Recreation (collectively, City) move separately pursuant to CPLR 3025(c) for an order granting leave to amend their answer nunc pro tunc to add an affirmative defense, and pursuant to CPLR 3211(a)(5) and (a)(7) for an order dismissing the complaint. Plaintiff opposes City’s motion.
[**3] I. FACTS
NYRR conducts more than 100 events a year, including the Manhattan Half Marathon (Half Marathon). (Affirmation of Kenneth L. Winell, Esq., dated Aug. 20, 2010 [Winell [*2] Aff.], Exh. D). Participants in the Half Marathon register through NYRR’s website which contains the following provision:
I know that participating in NYRR events is a potentially hazardous activity. I agree not to enter and participate unless I am medically able and properly trained. I agree to abide by any decision of an event official relative to my ability to safely complete the event. I am voluntarily entering and assume all risks associated with participating in the event, including, but not limited to, falls, contact with other participants, spectators or others, the effect of the weather, including heat and/or humidity, traffic and the conditions of the course, all such risks being known and appreciated by me. I grant to the Medical Director of this event and his designee access to my medical records and physicians, as well as other information, relating to medical care that may be administered to me as a result of my participation in this event. Having read this Waiver and knowing these facts, and in consideration of your acceptance of this application, I, for myself and anyone entitled to act of my behalf, waive and release New York Road Runners Club, Inc., Road Runners Club [*3] of America, USA Track & Field, the City of New York and its agencies and departments, the Metropolitan Athletics Congress, and all sponsors, and their representatives and successors, from present and future claims and liabilities of any kind, known or unknown, arising out of my participation in this event or related activities, even though such claim or liability may arise out of negligence or fault on the part of the foregoing persons or entities. I grant permission to the foregoing persons and entities to use or authorize others to use any photographs, motions pictures, recordings, or any other record of my participation in this event or related activities for any legitimate purpose without remuneration.
(Id., Exhs. C.F. [emphases added]). The registrant must then either select “I accept and agree to the above waiver,” or “I do not accept and do not agree to the above waiver.” (Id.) If the registrant selects the latter, he cannot register. (Id., Exh. C).
Plaintiff, a member of NYRR, is an experienced runner, having participated in over 100 NYRR events. (Affirmation of Frank Taubner, Esq., dated Oct. 11, 2010 [Taubner Aff.]). He registered for the 2009 Half Marathon online approximately [*4] one week earlier, and recalls seeing [**4] a waiver as part of the registration procedure. (Id.).
At approximately 8:00 a.m. on January 25, 2009, plaintiff arrived at the starting area of the Half Marathon in Central Park. (Id.). Snow banks flanked the course’s pathways. (Id.). An NYRR official orally instructed the participants that if they had to stop for any reason, they were to exit the course and proceed to the shoulder of the roadway so as not to block other participants. (Id.). While running, plaintiffs shoe became untied and seeing no designated exit areas, he stepped off the path as instructed and proceeded to what he believed to be a patch of dirt. (Id.). There, he slipped on ice that he had not seen, and fell backward, seriously injuring himself. (Id.).
II. NYRR’S MOTION
A. Contentions
NYRR contends that it is entitled to summary dismissal as plaintiff executed a valid and enforceable waiver of liability, and because it did not organize, supervise or control the half marathon. (Memorandum of Law in Support of Defendants’ Motion to Dismiss, dated Aug. 2010 [NYRR Mem.]). In support, it annexes the affidavits of three of its employees, (id., Exhs. C, D, E), a copy of the waiver (id, [*5] Exh. F), and proof of plaintiffs registration (id., Exh. F).
Plaintiff argues that in light of defendants’ gross negligence and his compliance with the instructions given at the commencement of the half marathon that he exit the course if he needed to stop, the waiver is unenforceable. He also denies having assumed the risk of slipping on ice when exiting the course. (Taubner Aff.).
In reply, NYRR asserts that plaintiff’s injury is encompassed by the waiver and that plaintiff has failed to establish that NYRR’s conduct rises to the level of gross negligence. (Reply [**5] Affirmation of Deborah Peters Jordan, Esq., dated Nov. 18, 2010).
B. Analysis
Contractual agreements to waive liability for a party’s negligence, although frowned upon, are generally enforceable where not expressly prohibited by law. (Gross v Sweet, 49 NY2d 102, 105, 400 N.E.2d 306, 424 N.Y.S.2d 365 [1979]). Language relieving one from liability must be unmistakable and easily understood. (Id. at 107). Agreements to indemnify for gross negligence or willful behavior, however, are void. (Id. at 106). “Gross negligence, when invoked to pierce an agreed-upon limitation of liability . . . must smack of intentional wrongdoing . . . that evinces a reckless indifference [*6] to the rights of others.” (Sommer v Fed. Signal Corp., 79 NY2d 540, 554, 593 N.E.2d 1365, 583 N.Y.S.2d 957 [1992]; Abacus Fed. Sav. Bank v ADT Sec. Servs., Inc., 77 A.D.3d 431, 433, 908 N.Y.S.2d 654 [1st Dept 2010]).
As plaintiff does not deny that he agreed to the waiver or that it is generally enforceable and not void as a matter of law or public policy, I need only address whether there exist factual issues as to whether NYRR was grossly negligent and whether the accident was outside the scope of the waiver. That the waiver references the “conditions of the course” does not remove plaintiff’s accident from its scope as the waiver extends to “all risks associated with participating in the event, including, but not limited to, falls, contact with other participants, spectators or others, the effect of the weather, including heat and/or humidity, traffic and the conditions of the course.” The breadth of the provision permits the inference that plaintiff was aware that by executing the waiver, he assumed the risks of running through Central Park in the winter, where the presence of ice is reasonably anticipated, which risks are reasonably deemed part of the activity, and not just of the course. (See Bufano v Nat. Inline Roller Hockey Assn., 272 A.D.2d 359, 707 N.Y.S.2d 223 [**6] [2d Dept 2000] [*7] [plaintiff assumed risk of injury during fight while playing inline roller hockey]), Nothing in the provision precludes its application to accidents incurred by a participant who momentarily steps off the course.
And, although plaintiff acted in compliance with defendants’ instruction to leave the race course if he needed to stop, such an instruction constitutes a sensible means of protecting participants from colliding with one another, and neither invites nor would naturally lead to an accident sufficient to constitute reckless indifference. Consequently, an inference of gross negligence is not reasonably drawn therefrom. (See Lemoine v Cornell Univ., 2 AD3d 1017, 769 N.Y.S.2d 313 [3d Dept 2003], lv denied 2 N.Y.3d 701, 810 N.E.2d 912, 778 N.Y.S.2d 459 [2005] [plaintiff fell from wall after rock-climbing instructor told her where to place her hands and feet; waiver of liability enforced; not gross negligence]). And, assuming that NYRR had a duty to keep the park free of slippery substances, the failure to do so constitutes ordinary negligence at best.
Given this result, I need not address RRCA’s alternative argument that it did not organize, supervise, or control the half marathon.
III. CITY’S MOTION
A. Contentions
City argues that it should [*8] be granted leave to amend its answer to add an affirmative defense that the action is barred by plaintiffs execution of a written release. It observes that leave is freely granted, that plaintiff will no suffer no prejudice, and that, although this motion was served after joinder of issue, it is procedurally proper as City moves pursuant to CPLR 3211(a)(7) as well as (a)(5). (Affirmation of Anthony Bila, ACC, dated Sept. 29, 2010).
Plaintiff asserts that City is not entitled to dismissal given the factual issues as to City’s [**7] gross negligence and whether plaintiff’s accident is encompassed by the waiver, and that the motion to amend should be denied because the affirmative defense is meritless and prejudicial. (Taubner Aff.).
In reply, City maintains that as it moves only pursuant to CPLR 3211, the existence of factual issues is immaterial. It contends that the amendment is meritorious and will not prejudice plaintiff, and that plaintiffs accident falls squarely within the scope of the waiver and that there is no evidence of gross negligence. (Reply Affirmation of Anthony Bila, ACC, dated Nov. 18, 2010).
B. Analysis
Although objections pursuant to CPLR 3211(a)(5) are waived if not invoked [*9] in the movant’s answer (CPLR 3211 [e]), a motion to amend an answer may be granted in order that the affirmative defense be addressed on the merits. (Siegel, NY Prac § 274, at 435 [3d ed]; Marks v Macchiarola, 221 AD2d 217, 634 N.Y.S.2d 56 [1st Dept 1995]). Thus, and absent any discernible prejudice given plaintiffs having addressed the substance of the motion above (II. A.), leave is granted. (Cf Young v GSL Enter., Inc., 170 AD2d 401, 566 N.Y.S.2d 618 [1st Dept 1991] [Supreme Court properly addressed merits of proposed affirmative defense in motion to amend]; Scheff v St. John’s Episcopal Hosp., 115 AD2d 532, 534, 496 N.Y.S.2d 58 [2d Dept 1985] [same]).
Although plaintiff executed the waiver on NYRR’s website, City was expressly included therein. (See Brookner v New York Roadrunners Club, Inc., 51 AD3d 841, 858 N.Y.S.2d 348 [2d Dept 2008], lv denied 11 N.Y.3d 704, 894 N.E.2d 1198, 864 N.Y.S.2d 807 [upholding waiver against NYRR and City]; cf Tedesco v Triborough Bridge and Tunnel Auth, 250 AD2d 758, 673 N.Y.S.2d 181 [2d Dept 1998] [bicycle tour waiver included party not specifically named in release]). Moreover, the waiver of liability is a release within the meaning [**8] of CPLR 3211(a)(5). (See Brookner, 51 AD3d 841, 858 N.Y.S.2d 348).
Having already determined that the waiver is enforceable as against plaintiff, and as NYRR’s [*10] conduct was not grossly negligent, the same result is reached as to City.
IV. CONCLUSION
Accordingly, it is hereby
ORDERED, that the motion for summary judgment by New York Road Runners, Inc. and Road Runners Club of America is granted, and the complaint dismissed against them with costs and disbursements to defendants as taxed by the Clerk upon the submission of an appropriate bill of costs; it is further
ORDERED, that the motion by City of New York and New York City Department of Parks and Recreation for leave to serve an amended answer is granted, and the annexed answer is deemed timely served, nunc pro tunc; and it is further
ORDERED, that the motion for dismissal as against City of New York and New York City Department of Parks and Recreation is granted, and the complaint dismissed against them with costs and disbursements to defendants as taxed by the Clerk upon the submission of an appropriate bill of costs.
This constitutes the decision and order of the court.
/s/ Barbara Jaffe
Barbara Jaffe, JSC
DATED: February 18, 2011
New York, New York
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Wife signed release, husband signed addendum to release and was held to the exculpatory clause in the release
Posted: November 11, 2013 Filed under: Georgia, Health Club, Release (pre-injury contract not to sue) | Tags: Addendum, Contract, Douglasville Health & Athletic Club, Fitness Club, Gordon Johnson, Gym, Health club, James Haddle d/b/a Douglasville Health & Athletic Club, New York City, Public Policy, Release, Rock climbing, Summary judgment, Waiver Leave a commentLanguage of addendum was sufficient to bind husband to contract – but a risky legal move.
Plaintiff: Terrell L. Hembree
Defendant: Gordon Johnson and James Haddle d/b/a Douglasville Health & Athletic Club
Plaintiff Claims: negligence
Defendant Defenses: Release
Holding: for the defendants
The wife of the plaintiff joined the defendant Douglasville Health & Athletic Club. When she joined she signed the Membership Agreement that was referenced by an Agreement Number (13217). When she completed the agreement. She listed her husband, the plaintiff as a family member. The membership agreement on the front referred to rules and conditions which the signor agreed to that were listed on the back. The rules and conditions on the back included exculpatory (release) language.
Several months after his wife joined, the plaintiff joined the health club. He signed a Membership Addendum which stated, “I herewith modify my original membership agreement No. 13217 dated 4-14-92 as stated herein.”
The plaintiff allegedly slipped and fell while playing racquet ball injuring his knee. The defendants filed a motion for summary judgment based upon the release signed by the spouse of the plaintiff.
Summary of the case
The plaintiff argued the dismissal of his case was improper because there was the existence of a material issue of a disputed fact. That fact was whether he assented to the release when he joined the defendant club.
Under Georgia law the construction of a written contract is a question of law, which can be decided by a court unless an ambiguity exists in the agreement.
Simply put, when the plaintiff signed the Membership Addendum, he assented to all the terms contained in the original agreement signed by his wife.
Even better the court stated, “It was incumbent upon Hembree [plaintiff] to read the contract and apprise himself of the terms to which he assented.”
Another issue raised by the plaintiff was the release violated the Georgia Fair Business Practices Act (O.C.G.A. § 10-1-393.2). The plaintiff failed to preserve the issue for appeal; however, the court did review the issue.
A health club membership does not violate public policy, or violate the Georgia Fair Business Practices Act.
A contracting party may waive or renounce that which the law has established in his favor, provided doing so does not injure others or affect the public interest. O.C.G.A. § 1-3-7. It is well settled that public policy does not prohibit the inclusion of an exculpatory clause, like the one at issue here, in a health club membership.
So Now What?
Normally, a court looks at a release or waiver as a personal contract with a third party. No one can sign away the right to sue of another, unless they are legally allowed to do so through a Power of Attorney or as a guardian.
In this case, the court looked at the relationship between the person who signed the original agreement and the person signing the addendum. The addendum specifically referred to the original agreement by a number.
Do not ever rely on this case to have a non-signor on a release held to a release. Always get a signature. In this case, it would have only taken a few more minutes to hand the plaintiff a release and have him read and sign the document.
What do you think? Leave a comment.
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Copyright 2013 Recreation Law (720) Edit Law
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By Recreation Law Rec-law@recreation-law.com James H. Moss #Authorrank
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Will New York entertain counterclaims for attorney fees and costs to a prevailing defendant?
Posted: July 29, 2013 Filed under: New York, Release (pre-injury contract not to sue), Skydiving, Paragliding, Hang gliding | Tags: assumption of the risk, Hang gliding, Negligence, New York, New York City, Paragliding, Plaintiff, Public Policy, Recreation, Release, Skydiving, Summary judgment, Tandem, Tandem Skydiving 3 CommentsUnderlying claim is dismissed for assumption of the risk. Falling out of the sky is obviously dangerous.
Plaintiff: Lisa Nutley
Defendant: SkyDive the Ranch
Plaintiff Claims: Negligence
Defendant Defenses: Release and Assumption of the risk, counterclaim for attorney fees based on the release
Holding: for the defendant on the claims based on assumption of the risk
This is an interesting case. To understand the case, I’ve also posted the trial court opinion leading to the appeal of this case.
The spouse of the plaintiff bought her a tandem sky dive as a gift. During the jump, the main shoot did not open. The reserve shoot did open. During the jump, the plaintiff broke her third and fourth fingers on her right hand. She sued for negligence.
The defendant filed a motion for summary judgment to dismiss the plaintiff’s claims based on the three releases she had signed and the video and instruction she had watched.
The trial court denied the motion for summary judgment (Nutley v. Skydive The Ranch, 22 Misc. 3d 1122(A); 881 N.Y.S.2d 365; 2009 N.Y. Misc. LEXIS 274; 2009 NY Slip Op 50223(U); 241 N.Y.L.J. 23) and the defendant appealed.
Summary of the case
The basis of the denial of the motion for summary judgment is a New York statute which prohibited the use of a release for recreational activities. New York General Obligations Law (“GOL”) §5-326. The lawsuit was dismissed because the trial court found the defendant operated a sky-diving facility as a recreational business. The Defendant had argued that it was an educational business which does not fall under §5-326.
The appellate court found the releases were void under the New York statute.
The appellate court found that the risks of the activity were fairly obvious, and the plaintiff had assumed the risk of her injuries.
Here, the risk of the main parachute failing to open during a tandem sky dive was perfectly obvious. Indeed, plaintiff was given a reserve parachute. Plaintiff failed to raise a triable issue of fact as to whether the injury-causing event resulted from defendant’s negligence, creating unique and dangerous conditions beyond those inherent in the sport
The court then went back to its decision on releases and found the language attempting to release the defendant for negligence was void; however, the rest of the release was still valid.
So much of the waiver and release signed by plaintiff as purports to exempt defendant from its own negligence is void under General Obligations Law § 5-326. Severance of that provision leaves the rest of the contract intact…
Part of one of the releases had included a clause that any suit required the plaintiff to pay the defendant’s damages of attorney fees and costs. The defendant filed a counterclaim against the plaintiff based upon this clause. The court did not rule on this issue finding that the trial court needed to look into whether this clause violated public policy as advanced by the statute that voids releases.
As to defendant’s counterclaims, however, we note that whether agreements not to sue a defendant and to pay its attorney’s fees and litigation costs might transgress the public policy of promoting recreational activities advanced by § 5-326 does not appear to have been considered by the courts.
The matter was sent back to the trial court to determine if the counterclaim for attorney fees and costs of the defendant violated New York Public policy and for any defenses the plaintiff may have to the defendant’s counterclaims.
So Now What?
The defendant lost on the defense of release, but won on the defense of assumption of the risk. The defendant might win on the opportunity to sue the plaintiff for attorney fees and costs in the assumption of risk agreements (since the releases are void).
This case appears to be fairly clear in its approach and decision. You can get hurt if you fall out of the sky. That is pretty obvious. Therefore, you assume the risk.
The argument about the sky-diving facility being an educational business rather than recreation is discussed in the trial court decision. That argument made by the defendant was based on Lemoine v Cornell University, 2 A.D.3d 1017; 769 N.Y.S.2d 313; 2003 N.Y. App. Div. LEXIS 13209 (NY 2003). In Lemoine, the university was subject to the statute which voids releases in New York, but because it was an educational organization and not one for recreation, the statute did not apply.
What is different is the issue that the court held out the possibility that a demand for attorney fees and costs to a prevailing defendant may be viable in New York.
Four years has passed since this decision, and no other cases have been reported. Consequently, as of this time we do not have a decision to rely upon for this issue.
Even if there is not a valid claim because it violates public policy, there are several other theories on how a defendant can recover attorney fees in situations like this that may survive.
What do you think? Leave a comment.
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Bateman v. Sport Photo and EMS, Inc., 1983 U.S. Dist. LEXIS 15461 (S.D. New York 1983)
Posted: July 15, 2013 Filed under: Legal Case, New York, Racing, Release (pre-injury contract not to sue) | Tags: 10 Kilometer Run, Inc., Maureen S. Bateman, Model Release, New York, New York City, New York Marathon, New York Roadrunners Club, New York Supreme Court, Perrier, Photo Release, Photograph Release, Plaintiff, Release, Sport Photo and EMS, Summary judgment Leave a commentBateman v. Sport Photo and EMS, Inc., 1983 U.S. Dist. LEXIS 15461 (S.D. New York 1983)
Maureen S. Bateman, Plaintiff, against Sport Photo and EMS, Inc., Defendants.
No. 81 Civ. 4790 (MJL)
UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF NEW YORK
1983 U.S. Dist. LEXIS 15461
July 14, 1983
COUNSEL: [*1] J. DENNIS McGRATH, ESQ., 321 East 89th Street, New York, New York 10028, for plaintiff.
ROGERS & WELLS, 200 Park Avenue, New York, New York 10166, for defendants.
OPINION BY: LOWE
OPINION
MEMORANDUM OPINION AND ORDER
MARY JOHNSON LOWE, D. J.
This action, brought pursuant to New York Civil Rights Law Sections 50 and 51, was originally commenced in New York Supreme Court. The action was subsequently removed by the defendants to this Court. Plaintiff alleges that defendants used a photograph of her taken during the 1980 Perrier 10 Kilometer Run in New York Ciry, for advertising purposes, without her written consent, in violation of the above-mentioned statute. 1 Defendants have moved for summary judgment on the ground that plaintiff signed a release on her entry blank which gave the New York Roadrunners Club [“NYRRC”] and its assigns “full permission… to use any photographs, video tapes, motion pictures, recordings, or any other record of this event [the Perrier 10 Kilometer Run] for any legitimate purpose.” Defendants claim that NYRRC assigned the rights, acquired by virtue of plaintiff’s release, to Sportphoto for use in connection with Sportphoto’s business of soliciting [*2] mail order sales of photographs from contestants in competitive foot races.
1 Briefly stated, defendants’ business operates as follows. Defendants’ employees take photographs of runners as they participate in a race. Thereafter, defendants obtain the names and addresses of the participants from the sponsor of the race, and mail the participants “proof cards” of the photograph along with an offer to sell them a color copy of the photograph. During the course of the Perrier 10K defendants took plaintiff’s photograph, which was subsequently purchased by plaintiff’s husband. Plaintiff does not object to the sending of the proof card or the sale of her photograph to her husband. Rather, plaintiff objects to the use of her photograph as part of an advertisement of defendants’ Special Poster Offer”. Almost 6,000 copies of the Special Poster Offer, including plaintiff’s photograph, were printed and mailed to participants in the 1981 New York Marathon. (Evenson Dep. at 55).
Plaintiff argues that there are two major issues of material fact which preclude the granting of summary judgment in favor of defendants; first, whether plaintiff, by signing the so-called “release”, consented [*3] to the use of her photograph for advertising purposes unrelated to the event in which she was running; and second, whether there was a valid assigment by NYRRC to Sportphoto. The Court agrees that there are genuine issues of material fact in this case which render summary judgment inappropriate.
The parties’ dispute concerning the correct interpretation of the “release” centers around the use of the phrase “for any legitimate purpose”. Defendants argue that “legitimate” should be given its dictionary meaning, which would clearly encompass advertising and commercial purposes. Plaintiff responds, and the Court agrees, that the phrase should not be construed without reference to the “circumstances under which the entry blank was signed, and the purpose for which it was required – getting a number to run a race.” Plaintiff’s Op. Memo., at 20.
[HN1] The law is clear with respect to the interpretation of releases generally that their “meaning and coverage necessarily depend as in the case of contracts generally, upon the controversy being settled and upon the purpose for which the release was actually given. Certainly, a release may not be read to cover matters which the parties did [*4] not desire or intend to dispose of”. Cahill v. Regan, 5 N.Y.2d 292, 299, 184 N.Y.S.2d 348, 354, 157 N.E.2d 505, 510, quoted in Tarantola v. Williams, 48 AD 2 552 371 N.Y.S.2d 136, 139. The ultimate question in this case is whether, in light of all of the surrounding circumstances, the parties could reasonably have intended plaintiff’s signature on her entry blank to signify her consent to the use of her photograph for commercial purposes in connection with a different race a year and a half later; or whether, as plaintiff contends, the only use contemplated was promotional activity in connection with the race plaintiff was then entering. 2 The Court is convinced on the record before it that this question should be resolved by the trier of fact.
2 Plaintiff’s affidavit makes clear that if a photograph of her running in the Perrier 10K appeared in an article about that race, or if the sponsor of the race showed a video-tape of the race, in which plaintiff happened to appear she would deem those uses “legitimate” within the meaning of the release. Bateman Aff. P29.
This case is not, as defendants suggest, analagous to cases in which courts have broadly construed releases [*5] entered into by professional models and actors. Unlike the plaintiffs in those cases, who knowingly signed releases for commercial purposes in pursuit of their careers, the plaintiff here is an amateur athlete who signed a release for the sole purpose of entering a footrace. What constitutes a “legitimate use” of an individual’s photograph may vary from one context to another. Thus, the present case raises factual questions concerning the intent of the parties and the proper interpretation to be given the release.
Plaintiff also claims that there is a genuine issue of material fact with respect to whether defendants were the assignees of whatever rights NYRRC obtained by virtue of the entry blank “release”. Plaintiff acknowledges that there was a verbal agreement in 1979 (and renewed thereafter), between NYRRC and defendants giving defendants the exclusive right to take photographs of runners at the Perrier 10K for subsequent mail order sale. However, she argues that this agreement did not constitute an “assignment” of any rights on the entry blank; nor did it contemplate the use of one runner’s photograph for advertising directed at other runners.
Defendants maintain that [*6] in construing the agreement between NYRRC and defendants, the intent of the parties is controlling. They argue that in this case, the intent of the parties has been explicitly set out in the affidavits of Mr. Lebow, president of the NYRRC, and Mr. Evenson, president of defendants. Both Mr. Lebow and Mr. Evenson state that NYRRC intended to assign defendants the right to use runners’ photographs for all legitimate purposes, including advertising in connection with defendants’ business of selling photographs by mail. It is defendants’ position that in light of these clear expressions of intent, the assignment issue should be resolved as a matter of law.
Plaintiff argues that the rest of the evidence, including portions of Mr. Evenson’s own deposition testimony, contradicts the statements of Mr. Lebow and Mr. Evenson with respect to their intent at the time the agreement was reached, and thus raises a triable issue of fact. For example, Mr. Evenson testified during his deposition that he and Mr. Lebow never discussed the language of the entry blank “release”, the assignment of rights under the entry blank “release”, or the use of a participant’s photograph in the manner challenged [*7] herein, during negotiations for the agreement.Mr. Lebow testified that he could not recall whether these issues had been discussed. Defendants respond that the parties need not have anticipated or discussed every specific application of the agreement so long as the agreement was sufficiently broad to encompass those applications.
We find that the plaintiff has raised questions of credibility and intent which, even where the evidence weighs strongly in favor of one side, are better left to the trier of fact.
For the reasons stated above, defendants’ motion for summary judgment is hereby denied.
It is So Ordered.
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Eighteen year old girl knocks speeding cyclists over to protect children; Sudden Emergency Doctrine stops suit
Posted: May 6, 2013 Filed under: Cycling, Minors, Youth, Children, New York, Summer Camp, Youth Camps | Tags: Central Park, Cycling, Cyclists, Day Camp, New York, New York City, NY, Oasis Children's Services, Recreation, Summer Camp, Summer Enrichment program Leave a commentPavane v. Marte, 37 Misc. 3d 1216A; 2012 N.Y. Misc. LEXIS 5128; 2012 NY Slip Op 52060U
Cyclists deserved it to.
This is a lawsuit over an injury a cyclist received when he crashed in New York City. He crashed because an eighteen year old summer enrichment program counselor shoved him over with her “Stop Children Crossing” sign when he failed to stop at a light.
A summer enrichment program is a day camp for kids when parents have to work. The kids are taken on tours, programs, exercise and many involve a lot of outdoor recreation. In this case, the kids with two counselors were walking to a swimming pool. The program was run by the defendant Oasis Children’s Services.
While crossing a street only half the students made it across the street before the light changed. The defendant counselor kept her students back until the light changed again. She then proceeded out to the middle of traffic and held up a sign which said Stop Children Crossing. As the students started to cross she noticed a group of cyclists coming towards the crosswalk. All but one of the cyclists stopped. The one who did not stop was the defendant.
As per the protocol of the program, the counselor was supposed to yell at cyclists who look like they are not going to stop. If the cyclists do not stop a counselor it to put their body between the bicycle and the kids. (That is asking a lot of an 18-year-old kid!)
The light was red; the cyclist was not stopping so the counselor put her body between the kids and the cyclists. The cyclists still did not stop. The counselor waived her sign and yelled at the cyclists. At the last moment, she jumped out of the way, and she pushed the cyclists arm with her sign.
He crashed!
The cyclists sued for negligence that he crashed because a girl pushed him with a sign. The defendants raised the defense of the Sudden Emergency Doctrine.
Summary of the case
The sudden emergency doctrine has many different names and variations across the US. You should check your state to determine if it is available as a defense how the defense is defined. Do not rely on the sudden emergency doctrine to save you, it rarely does.
In New York, the Sudden Emergency Doctrine is defined as:
A common law emergency doctrine is recognized in New York and it applies “when an actor is faced with a sudden and unexpected circumstance that leaves little or no time for thought, deliberation or consideration, or causes the actor to be reasonably so disturbed that the actor must make a speedy decision without weighing alternative courses of conduct. The actor may not be negligent if the actions taken are reasonable and prudent in the emergency context”.
Basically, it says you can be negligent for the greater good. If your negligence is less than the damage or problem that not being negligent will create, then the Sudden Emergency Doctrine provides you a defense to a negligence claim.
In this case, the court found the actions of the defendant counselor in pushing the cyclists saved the children. “The evidence is credible that Marte [Defendant] pushed Pavane [Plaintiff] from his bicycle in order to prevent children from getting injured.”
Application of the Sudden Emergency Doctrine is a balancing test to some extent. The harm created by the negligent act is less than the harm that would have occurred if the defendant had not acted. 99% of the time only a jury will make the decision, whether your actions where worth it.
As a further little hit, the court held “It is the finding of this Court that Mr. Pavane’s own failure to stop at the red light and yield to children crossing the street was the sole proximate cause of the incident.”
So Now What?
The sad thing is the program had so much experience with cyclist’s running lights; they had developed a program to deal with it.
Cyclists of New York, you should be embarrassed!
The classic case of where the Sudden Emergency Doctrine would work is portrayed in “Touching the Void” by Joe Simpson.
Do not rely on the sudden emergency doctrine as a defense in your program or activity.
Plaintiff: Martin Pavane and Merrill Pavane
Defendant: Samidra Marte, Oasis Community Corporation and Oasis Children’s Services
Plaintiff Claims: Negligence
Defendant Defenses: Sudden Emergency Doctrine
Holding: For the Defendant
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Pavane v. Marte, 37 Misc. 3d 1216A; 2012 N.Y. Misc. LEXIS 5128; 2012 NY Slip Op 52060U
Posted: May 6, 2013 Filed under: Cycling, Legal Case, Minors, Youth, Children, New York, Summer Camp, Youth Camps | Tags: Central Park, Cyclists, Day Camp, Metro Areas, New York, New York City, NY, Oasis Children's Services, Plaintiff, Summary judgment, Summer Camp, Summer Enrichment program Leave a commentPavane v. Marte, 37 Misc. 3d 1216A; 2012 N.Y. Misc. LEXIS 5128; 2012 NY Slip Op 52060U
Martin Pavane and Merrill Pavane, Plaintiff(s), against Samidra Marte, Oasis Community Corporation and Oasis Children’s Services, Defendant(s).
33473/08
SUPREME COURT OF NEW YORK, KINGS COUNTY
37 Misc. 3d 1216A; 2012 N.Y. Misc. LEXIS 5128; 2012 NY Slip Op 52060U
August 9, 2012, Decided
NOTICE: THIS OPINION IS UNCORRECTED AND WILL NOT BE PUBLISHED IN THE PRINTED OFFICIAL REPORTS.
CORE TERMS: summary judgment, bicycle, street, crossing, counselor, emergency, crosswalk, walk, emergency doctrine, triable issues of fact, stop sign, deposition, cyclist, annexed, proximate cause, red light, matter of law, emergency situation, party opposing, affirmative defense, traffic light, reasonableness, deliberation, speculative, unexpected, proceeded, favorable, surprise, sudden, pushed
HEADNOTES
[*1216A] Negligence–Emergency Doctrine.
JUDGES: [**1] Hon. Bernard J. Graham, Acting Justice.
OPINION BY: Bernard J. Graham
OPINION
Bernard J. Graham, J.
Decision:
The captioned lawsuit was commenced by filing of a summons and complaint on or about December 8, 2008, by plaintiffs, Martin Pavane and Merrill Pavane, against defendants Samira Marte (incorrectly identified as “Samidra Marte”), Oasis Community Corporation, and Oasis Children’s Services, LLC. Plaintiffs’ claim is a negligence action against defendants stemming from a fall at Central Park and a derivative claim on behalf of plaintiff, Merrill Pavane.
Defendants move for summary judgment pursuant to CPLR § 3212 for dismissal of the plaintiffs’ complaint alleging that there are no triable issues of fact and that defendants are free from liability pursuant to the Emergency Doctrine’.
Background
Defendant Oasis Children’s Services, LLC (“Oasis”) is a company that runs summer enrichment programs for at-risk children in the tri-state area. They have several camp locations in New York City, including one in Central Park.
Defendant Oasis Community Corporation is a named defendant which is ostensibly related to Oasis Children’s Services, LLC.
During the summer of 2008, Oasis hired 18-year-old defendant Samira Marte [**2] (“Marte”) as a camp counselor. On August 22, 2008, Marte and another counselor, Rachel Carrion (“Carrion”), entered Central Park at 96th Street with their campers to reach a swimming pool at 110th Street. Their route required them to cross West Drive.
According to the deposition testimony of Ms. Marte, Rachel Carrion and several children crossed West Drive first. The walk signal changed to “do not walk” before Ms. Marte was able to cross with the rest of the group, so she stayed on the sidewalk with the children to wait for the light to change again. When the signal changed to “walk”, Ms. Marte followed camp guidelines and proceeded to the middle of the crosswalk to hold up her “stop/children crossing” sign. According to the deposition of Richard Thompson McKay, who is an Oasis supervisor and not a named party to the action, Oasis provided protocol training for all camp counselors on how to cross the street. Counselors are instructed to stand in the middle of the street with the stop sign before children may begin to pass. Counselors were also told that if it appears that a cyclist will not stop, then the counselors must first be “loud and verbal” and ask the cyclist to stop. If the [**3] cyclist still does not stop, then counselors must “put [their] body as best as [they] can in between bicyclist and the children that [they] have to protect.” (See Dep. of Richard Thompson McKay, pg. 11-12, annexed as Ex. “H” to the Aff. of Rodney E. Gould in support of motion for summary judgment).
Ms. Marte states that several bicyclists were traveling down West Drive and that all of them stopped for the red light except for “one person that kept going.” (See Dep. of Samira Marte, pg. 60-61, 73-74, annexed as Ex. “F” to the Aff. of Rodney E. Gould in support of motion for summary judgment). Ms. Marte observed the defendant, Martin Pavane (“Pavane”), approaching the red light on his bicycle and alleges that Mr. Pavane did not slow down. Since children were beginning to cross the street, Ms. Marte anticipated that the bicycle would collide with the crossing children and herself. In order to get Mr. Pavane to stop, Ms. Marte first waived her stop sign and yelled for him to stop. When the bicycle still did not stop or slow down, she tried to put herself in between the bicycle and the children by standing in front of the bicycle’s [***2] path. However, Ms. Marte was forced to move aside because [**4] she states that the bicycle was going too fast. She was afraid that the bicycle would run right into her and the children. Ms. Marte states that was the moment she decided to push Mr. Pavane’s arm with the stop sign (Marte Dep. pg. 74-77).
Discussion
In opposition to the defendants’ motion for summary judgment, plaintiffs argue that the defendants failed to include the Emergency Doctrine’ as an affirmative defense in their answer.
However, where the party opposing summary judgment has knowledge of the facts relating to the existence of an emergency and would not be taken by surprise with the use of the emergency defense, the doctrine does not have to be pleaded as an affirmative defense (see Bello v. Transit Auth. of NY City, 12 AD3d 58, 61, 783 N.Y.S.2d 648 (2nd Dept. 2004)). Here, plaintiffs cannot claim that they were taken by surprise by defendants’ emergency defense. The depositions provide full descriptions of facts describing an emergency situation.
A common law emergency doctrine is recognized in New York and it applies “when an actor is faced with a sudden and unexpected circumstance that leaves little or no time for thought, deliberation or consideration, or causes the actor to be reasonably so [**5] disturbed that the actor must make a speedy decision without weighing alternative courses of conduct. [The] actor may not be negligent if the actions taken are reasonable and prudent in the emergency context”. (Caristo v. Sanzone, 96 NY2d 172, 174, 750 N.E.2d 36, 726 N.Y.S.2d 334 (2001) (citing Rivera v. New York City Tr. Auth., 77 NY2d 322, 327, 569 N.E.2d 432, 567 N.Y.S.2d 629 (1991); see also Marks v. Robb, 90 AD3d 863, 935 N.Y.S.2d 593 (2nd Dept. 2011)). The depositions show that Marte was confronted with a sudden and unexpected emergency circumstance that left her with little time for deliberation. The evidence is credible that Marte pushed Pavane from his bicycle in order to prevent children from getting injured.
Ordinarily, the reasonableness of a party’s response to an emergency situation will present questions of fact for a jury, but it may be determined as a matter of law in appropriate circumstances (Bello v. Transit Auth. of NY City, 12 AD3d at 60; see also Koenig v. Lee, 53 AD3d 567, 862 N.Y.S.2d 373 (2nd Dept. 2008); Vitale v. Levine, 44 AD3d 935, 844 N.Y.S.2d 105 (2nd Dept. 2007)).
In this case, defendants seek an award of summary judgment dismissing the plaintiffs’ claim which would require a determination by this Court that, as a matter of law, the actions taken by Ms. Marte were reasonable [**6] and did not present a question which should be presented to a jury. Although summary judgment is a drastic remedy, a court may grant summary judgment when the moving party establishes that there are no triable issues of material fact (see Rotuba Extruders v. Ceppos, 46 NY2d 223, 385 N.E.2d 1068, 413 N.Y.S.2d 141 (1978); Sillman v. Twentieth Century-Fox Film Corp., 3 NY2d 395, 144 N.E.2d 387, 165 N.Y.S.2d 498 (1957)).
Rachel Carrion, the co-counselor who is not a named party to the action, testified that she saw Pavane ride his bicycle towards the crosswalk where herself and Marte were crossing the street with children from the Oasis summer camp (see Carrion Dep. pg. 8-9 annexed to Gould [***3] Aff. in support of motion for summary judgment). Carrion testified that Pavane was approaching them “at [a] speed” and “would not stop” (Carrion Dep. pg. 10). The testimony of Ms. Carrion is completely consistent and corroborative of Ms. Marte’s testimony. Ms. Marte stated that Mr. Pavane was not going to stop and was about to hit the four children who were crossing in the crosswalk (Marte Dep. pg 61).
The majority of Pavane’s testimony consists of mere speculative and conclusory assertions because he claims to not recall most details. For example, Pavane did not recall [**7] whether he saw children on the street (see Pavane Dep. pg. 17, annexed to the Aff of Leon Sager in opposition to the motion for summary judgment), but states that “it’s certainly possible there were people there.” (Pavane Dep. pg. 17). Carrion testified that there definitely were children on both sides of the crosswalk and some crossing in the middle before Marte pushed Pavane off his bicycle (Carrion Dep. pg. 11). Pavane also does not recall whether Marte was holding a “stop, children crossing” sign or whether she was waving at him, but he does remember Marte being a young woman in her teens (Pavane Dep. Pg. 17), who was “doing something with her hands at the particular time when she stepped in front of [him]” (Pavane Dep. pg. 18).
In reviewing the offered testimony in support of the motion and the opposition to the motion, the evidence submitted must be viewed in the light most favorable to the party opposing the motion (see Branham v. Loews Orpheum Cinemas, Inc., 8 NY3d 931, 866 N.E.2d 448, 834 N.Y.S.2d 503 (2007)). Even assessing the available evidence in a light most favorable to Mr. Pavane, a neutral reading of the evidence would support a conclusion that Ms. Marte and the children were crossing the street with [**8] the “walk” sign in their favor; that Ms. Marte was positioned with her stop sign at the cross walk; and that Mr. Pavane was cycling into the crosswalk against the traffic light.
While this Court is hesitant to declare the actions of any party in an alleged tort claim to be reasonable as a matter of law, in certain cases, such as this, summary judgment may be appropriate. (see Bello v. Transit Auth. of NY City, 12 AD3d 58, 783 N.Y.S.2d 648 (2004). The actions of the defendant, Marte, must be considered reasonable given the emergency she faced and the potentially harmful consequences to the children she was protecting. It is also apparent that Mr. Pavane proceeded into the intersection against the traffic light and, would fairly be considered to be the proximate cause of his injury. Where it is clear that the plaintiff’s actions were the sole proximate cause of the accident, plaintiff’s mere speculative assertions that defendant may have failed to act properly is insufficient to raise a triable issue of fact to defeat a summary judgment motion. (see Goff v. Goudreau, 222 AD2d 650, 650, 635 N.Y.S.2d 699 (2nd Dept. 1995); Vitale v. Levine, 44 AD3d 935, 844 N.Y.S.2d 105 (2nd Dept. 2007)).
Conclusion
It is the finding of this Court that Mr. Pavane’s [**9] own failure to stop at the red light and yield to children crossing the street was the sole proximate cause of the incident. The actions of the camp counselor, Ms. Marte, in the context of crossing the street with young children who she feared would be injured by the cyclist can only be considered reasonable and appropriate in the given circumstances. Mr. Pavane has not offered evidence which would raise a triable issue of fact as to the reasonableness of Ms. Marte’s actions and to subject the defendants here to the expenses of a trial on this matter would be exceedingly unjust.
Accordingly, defendants’ motion for summary judgment is granted and the plaintiff’s complaint is dismissed.
This shall constitute the decision and order of this Court.
Dated: August 9, 2012
/s/
Hon. Bernard J. Graham, Acting Justice
Supreme Court, Kings CountyBottom of Form
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NYC cop threatens cyclists with ticket for being distracting: Cycling in a skirt
Posted: April 11, 2013 Filed under: Cycling | Tags: Cycling, Jasmijn Rijcken, New York City, New York City Police Department, NYC, NYPD, skirt, Streetsblog.org, World Naked Bike Ride Leave a commentWorld Naked Bike Ride in NYC must be a field day for cops.
Photo from Streetsblog.org
Yes, Suzy, riding a bicycle as a woman is dangerous. You can ride into an opening car door; you can crash hitting a pothole; you can be run over by a truck, or you can get a ticket for riding dressed as a woman?
Wouldn’t a guy riding a bike in a skirt be more of a distraction?
The next thing you know, women who are victims of sexual assault will be blamed for the assault because of how they looked.
Wait, it is 2013……
See Does cycling in a skirt make you a motoring hazard? The original article is Saudi Arabia on the Hudson: NYPD Officer Stopped Cyclist For Wearing Skirt
What do you think? Leave a comment.
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New York Sales Representative
Posted: March 17, 2013 Filed under: New York | Tags: Employment, IC, Independent Sales Rep, Labour law, New York, New York City, Rep, Wage Leave a commentNEW YORK CONSOLIDATED LAW SERVICE
All rights reserved
LABOR LAW
ARTICLE 6. PAYMENT OF WAGES
Go to the New York Code Archive Directory
NY CLS Labor § 190 (2013)
§ 190. [n1] [n1]Definitions
As used in this article:
1. “Wages” means the earnings of an employee for labor or services rendered, regardless of whether the amount of earnings is determined on a time, piece, commission or other basis. The term “wages” also includes benefits or wage supplements as defined in section one hundred ninety-eight-c of this article, except for the purposes of sections one hundred ninety-one and one hundred ninety-two of this article.
2. “Employee” means any person employed for hire by an employer in any employment.
3. “Employer” includes any person, corporation, limited liability company, or association employing any individual in any occupation, industry, trade, business or service. The term “employer” shall not include a governmental agency.
4. “Manual worker” means a mechanic, workingman or laborer.
5. “Railroad worker” means any person employed by an employer who operates a steam, electric or diesel surface railroad or is engaged in the sleeping car business. The term “railroad worker” shall not include a person employed in an executive capacity.
6. “Commission salesman” means any employee whose principal activity is the selling of any goods, wares, merchandise, services, real estate, securities, insurance or any article or thing and whose earnings are based in whole or in part on commissions. The term “commission salesman” does not include an employee whose principal activity is of a supervisory, managerial, executive or administrative nature.
7. “Clerical and other worker” includes all employees not included in subdivisions four, five and six of this section, except any person employed in a bona fide executive, administrative or professional capacity whose earnings are in excess of [fig 1] nine hundred dollars a week.
8. “Week” means a calendar week or a regularly established payroll week. “Month” means a calendar month or a regularly established fiscal month.
9. “Non-profitmaking organization” means a corporation, unincorporated association, community chest, fund or foundation organized and operated exclusively for religious, charitable or educational purposes, no part of the net earnings of which inure to the benefit of any private shareholder or individual.
§ 191. Frequency of payments
1. Every employer shall pay wages in accordance with the following provisions:
a. Manual worker.–
(i) A manual worker shall be paid weekly and not later than seven calendar days after the end of the week in which the wages are earned; provided however that a manual worker employed by an employer authorized by the commissioner pursuant to subparagraph (ii) of this paragraph or by a non-profitmaking organization shall be paid in accordance with the agreed terms of employment, but not less frequently than semi-monthly.
(ii) The commissioner may authorize an employer which has in the three years preceding the application em-ployed an average of one thousand or more persons in this state or has for one year preceding the application employed an average of one thousand or more persons in this state and has for three years preceding the application employed an average of three thousand or more persons outside the state to pay less frequently than weekly but not less frequently than semi-monthly if the employer furnishes satisfactory proof to the commissioner of its continuing ability to meet its payroll responsibilities. In making this determination the commissioner shall consider the following: (A) the employer’s history meeting its payroll responsibilities in New York state or if no such history in New York state is available, other financial information, as requested by the commissioner, which will assist the commissioner in determining the likelihood of the employer’s continuing ability to meet payroll responsibilities; (B) proof of the employer’s coverage for workers’ compensation and disability; (C) proof that there are no outstanding warrants of the department of taxation and finance or the department of labor against the employer for failure to remit state personal income tax withholdings or unemployment insurance contributions; and (D) proof that the employer has a computerized record keeping system for payroll which, at a minimum, specifies hours worked, rate of pay, gross wages, deductions and date of pay for each employee. If the employers’ manual workers are represented by a labor organization, the commissioner shall not grant an employer’s application for authorization under this subparagraph unless that labor organization consents thereto.
Upon notice to the employer and an opportunity to be heard, the commissioner may rescind such authorization whenever the commissioner has determined, based upon the factors enumerated above, that the employer is no longer able to meet its payroll responsibilities as previously authorized.
b. Railroad worker.-A railroad worker shall be paid on or before Thursday of each week the wages earned during the seven-day period ending on Tuesday of the preceding week; and provided further that at the written request and notification of address by any employee, every railroad corporation, with the exception of those commuter railroads under the jurisdiction of the metropolitan transportation authority, shall mail every check for wages of such employee via the United States postal service, first class mail.
c. Commission [fig 1] salespersons.–A commission [fig 2] salesperson shall be paid the wages, salary, drawing account, commissions and all other monies earned or payable in accordance with the agreed terms of employment, but not less frequently than once in each month and not later than the last day of the month following the month in which they are earned; provided, however, that if monthly or more frequent payment of wages, salary, drawing accounts or commissions are substantial, then additional compensation earned, including but not limited to extra or incentive earnings, bonuses and special payments, may be paid less frequently than once in each month, but in no event later than the time provided in the employment agreement or compensation plan. The employer shall furnish a commission [fig 3] salesperson, upon written request, a statement of earnings paid or due and unpaid. The agreed terms of employment shall be reduced to writing, signed by both the employer and the commission salesperson, kept on file by the employer for a period not less than three years and made available to the commissioner upon request. Such writing shall include a description of how wages, salary, drawing account, commissions and all other monies earned and payable shall be calculated. Where the writing provides for a recoverable draw, the frequency of reconciliation shall be included. Such writing shall also provide details pertinent to payment of wages, salary, drawing account, commissions and all other monies earned and payable in the case of termination of employment by either party. The failure of an employer to produce such written terms of employment, upon request of the commissioner, shall give rise to a presumption that the terms of employment that the commissioned salesperson has presented are the agreed terms of employment.
d. Clerical and other worker.–A clerical and other worker shall be paid the wages earned in accordance with the agreed terms of employment, but not less frequently than semi-monthly, on regular pay days designated in advance by the employer.
2. No employee shall be required as a condition of employment to accept wages at periods other than as provided in this section.
3. If employment is terminated, the employer shall pay the wages not later than the regular pay day for the pay period during which the termination occurred, as established in accordance with the provisions of this section. If requested by the employee, such wages shall be paid by mail.
§ 191-a. Definitions
For purposes of this article the term:
(a) “Commission” means compensation accruing to a sales representative for payment by a principal, the rate of which is expressed as a percentage of the dollar amount of wholesale orders or sales.
(b) “Earned commission” means a commission due for services or merchandise which is due according to the terms of an applicable contract or, when there is no applicable contractual provision, a commission due for merchandise which has actually been delivered to, accepted by, and paid for by the customer, notwithstanding that the sales representative’s services may have terminated.
(c) “Principal” means a person or company engaged in the business of manufacturing, and who:
(1) Manufactures, produces, imports, or distributes a product for wholesale;
(2) Contracts with a sales representative to solicit orders for the product; and
(3) Compensates the sales representative in whole or in part by commissions.
(d) “Sales representative” means a person or entity who solicits orders in New York state and is not covered by subdivision six of section one hundred ninety and paragraph (c) of subdivision one of section one hundred ninety-one of this article because he or she is an independent contractor, but does not include one who places orders for his own account for resale.
§ 191-b. Contracts with sales representatives
1. When a principal contracts with a sales representative to solicit wholesale orders within this state, the contract shall be in writing and shall set forth the method by which the commission is to be computed and paid.
2. The principal shall provide each sales representative with a signed copy of the contract. The principal shall obtain a signed receipt for the contract from each sales representative.
3. A sales representative during the course of the contract, shall be paid the earned commission and all other monies earned or payable in accordance with the agreed terms of the contract, but not later than five business days after the commission has become earned.
§ 191-c. Payment of sales commission
1. When a contract between a principal and a sales representative is terminated, all earned commissions shall be paid within five business days after termination or within five business days after they become due in the case of earned commissions not due when the contract is terminated.
2. The earned commission shall be paid to the sales representative at the usual place of payment unless the sales representative requests that the commission be sent to him or her through the mails. If the commissions are sent to the sales representative by mail, the earned commissions shall be deemed to have been paid as of the date of their postmark for purposes of this section.
3. A principal who fails to comply with the provisions of this section concerning timely payment of all earned commissions shall be liable to the sales representative in a civil action for double damages. The prevailing party in any such action shall be entitled to an award of reasonable attorney’s fees, court costs, and disbursements.
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NPS now on NYC landmark boat tours
Posted: January 24, 2013 Filed under: New York | Tags: Battery Park, Brooklyn Bridge, Ellis Island, Governors Island, National Park Service, National Park Tours, New York City, NPS, South Street Seaport, Statue of Liberty, Statute Cruises, Statute of Liberty Leave a comment| Statue Cruises Tour NowFeatures National Park Service Rangers
New York, NY – January 17, 2013 – Statue Cruises announces that National Park Service Rangers are now on board their daily harbor tours. As a new initiative, that started on January 13, 2013, the well-trained rangers will be on-deck and on-hand to lend their valuable expertise to passengers. Designed to enhance the educational aspect of the experience, the rangers will personally engage with passengers by assisting with inquiries and sharing their expert knowledge. The daily Statue of Liberty Harbor Tours grant up-close views of famed New York City landmarks from the unique perspective of the city’s waterways. Iconic landmarks viewed during the tour include the Statue of Liberty, Ellis Island, the 9-11 Memorial, the South Street Seaport, Governors Island and the Brooklyn Bridge, among others. Departing every 30 minutes daily from 10:00am to 4:45pm, passengers can now expect to interact with uniformed rangers during their hour-long tour. Statue Cruises COO, Mike Burke, believes the addition of the National Park Service Rangers will make the cruise more memorable for passengers. Burke states, “Visitors will not only enjoy the closest views of the Statue of Liberty but they will be able to learn about the National Monument from the experts themselves.” Tickets for the narrated sightseeing tours are $24.00 (adults); $17.00 (seniors) and $12.00 (children). Tours depart daily from Battery Park at the foot of Manhattan. Prior to embarking, passengers can purchase tickets online at www.statuecruises.com, by phone at 201-604-2800, or at the seawall in Battery Park. For more information, please visit www.statuecruises.com. About Statue Cruises Statue Cruises, the official concessioner to the National Park Service, is the premier harbor cruise operator in New York Harbor, sharing the sights of New York with over 4.0 million annual visitors from around the world. For more information visit: www.statuecruises.com/pressroom. |
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NY court explains how it interprets § 5-326 which disallows releases in NY. Upholds release for a marathon
Posted: October 8, 2012 Filed under: New York, Racing, Release (pre-injury contract not to sue) | Tags: Brooklyn, Jim Moss, New York, New York City, New York Roadrunners Club, New York Supreme Court Leave a commentBrookner v New York Roadrunners Club, Inc., et al., 2008 NY Slip Op 4638; 51 A.D.3d 841; 858 N.Y.S.2d 348; 2008 N.Y. App. Div. LEXIS 4393
Language of General Obligations Law § 5-326 is interpreted
In this case, the plaintiff sued the New York Road Runners Club which puts on the ING New York Marathon. His injuries were not stated in the claim nor were his
claims. A New York statute restricts the use of releases. See States that do not Support the Use of a Releaseand no court has ever clearly defined how they get around the statute when a release is raised as a defense.
The Supreme Court of New York, Appellate Division which wrote this decision held that General Obligations Law § 5-326 did not apply.
General Obligations Law § 5-326 states:
§ 5-326. Agreements exempting pools, gymnasiums, places of public amusement or recreation and similar establishments from liability for negligence void and unenforceable
Every covenant, agreement or understanding in or in connection with, or collateral to, any contract, membership application, ticket of admission or similar writing, entered into between the owner or operator of any pool, gymnasium, place of amusement or recreation, or similar establishment and the user of such facilities, pursuant to which such owner or operator receives a fee or other compensation for the use of such facilities, which exempts the said owner or operator from liability for damages caused by or resulting from the negligence of the owner, operator or person in charge of such establishment, or their agents, servants or employees, shall be deemed to be void as against public policy and wholly unenforceable.
The court then looked at the language of the statute and concluded the release applied in this case because the entry fee for the marathon was not a fee for admission into the streets of New York City. Further the court found the streets of New York City, where the plaintiff was injured were not places of amusement.
…General Obligations Law § 5-326 does not invalidate the release, since the entry fee the plaintiff paid to the NYRRC was for his participation in the marathon, and was not an admission fee allowing him to use the City-owned public roadway over which the marathon was run. Further, the public roadway in Brooklyn where the plaintiff alleges he was injured is not a “place of amusement or recreation”
So Now What?
Although the interpretation by the court could be viewed in another light, clearly most courts in New York want to uphold releases and if given the opportunity will write a decision which does so.
Make sure, if you are based in New York, that when your release is written it takes the statute into consideration. You can have signors of the release agree to the release that you are not a place of amusement, and the fee paid is not for admission.
Other New York Articles:
Electronic Signature on release in NY upheld.
New York Decision explains the doctrine of Primary Assumption of the Risk for cycling
Summer camp supervision issues are always part of any lawsuit and tough to determine in New York.
How to fight a Bicycle Product Liability case in New York. One step at a time
What do you think? Leave a comment.
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Brookner v New York Roadrunners Club, Inc., et al., 2008 NY Slip Op 4638; 51 A.D.3d 841; 858 N.Y.S.2d 348; 2008 N.Y. App. Div. LEXIS 4393
Posted: October 8, 2012 Filed under: Legal Case, New York, Racing | Tags: New York, New York City, New York Roadrunners Club, Supreme Court Leave a commentBrookner v New York Roadrunners Club, Inc., et al., 2008 NY Slip Op 4638; 51 A.D.3d 841; 858 N.Y.S.2d 348; 2008 N.Y. App. Div. LEXIS 4393
[*1] Larry Brookner, Appellant, v New York Roadrunners Club, Inc., et al., Respondents. (Index No. 2902/06)
2007-02310, 2007-02712
SUPREME COURT OF NEW YORK, APPELLATE DIVISION, SECOND DEPARTMENT
2008 NY Slip Op 4638; 51 A.D.3d 841; 858 N.Y.S.2d 348; 2008 N.Y. App. Div. LEXIS 4393
May 20, 2008, Decided
SUBSEQUENT HISTORY: Appeal denied by Brookner v. N.Y. Roadrunners Club, Inc., 11 NY3d 704, 894 NE2d 1198, 2008 N.Y. LEXIS 2654, 864 NYS2d 807 (N.Y., Sept. 9, 2008)
HEADNOTES
Release–Scope of Release
COUNSEL: David A. Kapelman, P.C., New York, N.Y. (Richard H. Bliss of counsel), for appellant.
Havkins Rosenfeld Ritzert & Varriale, LLP, New York, N.Y. (Steven Rosenfeld and Carmen Nicolaou of counsel), for respondents.
JUDGES: ANITA R. FLORIO, J.P., HOWARD MILLER, MARK C. DILLON, WILLIAM E. McCARTHY, JJ. FLORIO, J.P., MILLER, DILLON and McCARTHY, JJ., concur.
OPINION
[**841] [***348]
In an action to recover damages for personal injuries, the plaintiff appeals (1) from an order of the Supreme Court, Kings County (Ambrosio, J.), dated December 18, 2006, which, in effect, granted that branch of the defendants’ motion pursuant to CPLR 3211 (a) (5) which was to dismiss the complaint insofar as asserted against the defendant New York Roadrunners Club, Inc., and (2), as limited by his brief, from so much of an order of the same court dated February 8, 2007, as, in effect, granted that branch of the defendants’ motion pursuant to CPLR 3211 (a) (5) which was to dismiss the complaint insofar as asserted against the defendant City of New York.
Ordered that the order dated December 18, 2006, is affirmed; and it is further,
[***349] Ordered that the order dated February 8, 2007, is affirmed insofar as appealed from; and it is further,
Ordered that one bill of costs is awarded to the defendants.
The plaintiff commenced this action to recover damages after he allegedly sustained injuries while participating in the 2004 ING Marathon in New York City. Prior to the event, the plaintiff signed a waiver and release, which unambiguously stated his intent to release the defendants from [*2] any liability arising from ordinary negligence (see Bufano v National Inline Roller Hockey Assn., 272 AD2d 359, 359-360, 707 NYS2d 223 [2000]; cf. Gross v Sweet, 49 NY2d 102, 109-110, 400 NE2d 306, 424 NYS2d 365 [1979]; Doe v Archbishop Stepinac High School, 286 AD2d 478, 479, 729 NYS2d 538 [2001]). In light of this waiver and release, [**842] the Supreme Court properly granted those branches of the defendants’ motion which were to dismiss the complaint pursuant to CPLR 3211 (a) (5) insofar as asserted against the defendants New York Road Runners Club, Inc. (hereinafter NYRRC) and City of New York (see Fazzinga v Westchester Track Club, 48 AD3d 410, 851 NYS2d 278 [2008]; see also Booth v 3669 Delaware, 92 NY2d 934, 703 NE2d 757, 680 NYS2d 899 [1998]; Lee v Boro Realty, LLC, 39 AD3d 715, 716, 832 NYS2d 453 [2007]; Koster v Ketchum Communications, 204 AD2d 280, 611 NYS2d 298 [1994]).
Contrary to the plaintiff’s contentions, General Obligations Law § 5-326 does not invalidate the release, since the entry fee the plaintiff paid to the NYRRC was for his participation in the marathon, and was not an admission fee allowing him to use the City-owned public roadway over which the marathon was run (see Stulweissenburg v Town of Orangetown, 223 AD2d 633, 634, 636 NYS2d 853 [1996]). Further, the public roadway in Brooklyn where the plaintiff alleges he was injured is not a “place of amusement or recreation” (Tedesco v Triborough Bridge & Tunnel Auth., 250 AD2d 758, 673 NYS2d 181 [1998]; see Fazzinga v Westchester Track Club, 48 AD3d 410, 851 NYS2d 278 [2008]).
The plaintiff’s remaining contentions are without merit. Florio, J.P., Miller, Dillon and McCarthy, JJ., concur.
Linthwaite v. Mount Sinai Union Free School District, 2011 N.Y. Misc. LEXIS 6525; 2011 NY Slip Op 33569U
Posted: June 4, 2012 Filed under: Assumption of the Risk, Challenge or Ropes Course, Legal Case, New York | Tags: assumption of the risk, challenge course, Mount Sinai, New York, New York City, Plaintiff, Ropes course, Sachem School District Leave a commentLinthwaite v. Mount Sinai Union Free School District, 2011 N.Y. Misc. LEXIS 6525; 2011 NY Slip Op 33569U
[**1] Rebecca Linthwaite, Plaintiff, – against – Mount Sinai Union Free School District and Sachem School District, Defendants. Index No. 09-26360
09-26360
SUPREME COURT OF NEW YORK, SUFFOLK COUNTY
2011 N.Y. Misc. LEXIS 6525; 2011 NY Slip Op 33569U
December 28, 2011, Decided
NOTICE: THIS OPINION IS UNCORRECTED AND WILL NOT BE PUBLISHED IN THE PRINTED OFFICIAL REPORTS.
CORE TERMS: summary judgment, supervision, industry standards, school district, spotters, adventure, spotting, teacher, rope, certified transcript, entitlement, notice, supporting papers, factual issues, issues of fact, extracurricular activity, citations omitted, participating, supervising, proximately, positioning, photograph, opposing, platform, matter of law, notice of claim, cross claims, issue of liability, claims asserted, prima facie
COUNSEL: [*1] For Plaintiff: GLYNN MERCEP & PURCELL LLP, Stony Brook, New York.
For Mount Sinai UFSD, Defendant: CONGDON, FLAHERTY, O’CALLAGHAN, et al., Uniondale, New York.
For Sachem SD, Defendant: DONAHUE, MCGAHAN, CATALANO, et al., Jericho, New York.
JUDGES: PRESENT: Hon. W. GERARD ASHER, Justice of the Supreme Court.
OPINION BY: W. GERARD ASHER
OPINION
Upon the following papers numbered 1 to 46 read on these motions for summary judgment; Notice of Motion/ Order to Show Cause and supporting papers (001) 1-14; Notice of Cross Motion and supporting papers (002) 15-34; Answering Affidavits and supporting papers 35-39; Replying Affidavits and supporting papers 40-41; 42-44; Other 45-46, (and after hearing counsel in support and opposed to the motion) it is,
ORDERED that motion (001) by the defendant, Mount Sinai Union Free School District, pursuant to CPLR 3212 for summary judgment dismissing the complaint on the issue of liability is denied; and it is further
ORDERED that motion (002) by the defendant, Sachem Central School, pursuant to CPLR 3212 for summary judgment dismissing the complaint and cross claims asserted against it on the issue of liability is denied.
In this action, the plaintiff asserts that the defendants, Sachem [*2] School District (“Sachem”) and Mount Sinai Union Free School District (“Mount Sinai”), were negligent in failing to provide proper instruction and safety equipment, and in supervising the plaintiff while she was taking part in a Mount [**2] plaintiff, after having climbed to the top of a ten foot climbing wall in a “challenge by choice” event, tried to help another student over the wail, lost her balance, and fell backwards. The plaintiff asserts that the defendants had actual and constructive notice of the dangerous conditions which caused her to sustain injury.
In motion (001), the defendant, Mount Sinai, seeks summary judgment dismissing the complaint on the basis that it was not negligent in supervising the plaintiff or in failing to provide a safe and padded area and to warn students not to help others over the wall. It further asserts that the plaintiff assumed the risk of the extracurricular activity, that it exercised reasonable care, that the plaintiff’s injuries were not the result of any breach of duty owed to the plaintiff, that the climbing wall was not located on the grounds of Mount Sinai, and that Mount Sinai did not maintain the wall.
In motion (002), Sachem seeks summary [*3] judgment dismissing the complaint and cross claims against it on the basis that it did not breach any duty to the plaintiff, and that its alleged negligence did not proximately cause the injuries claimed by the plaintiff.
The proponent of a summary judgment motion must make a prima facie showing of entitlement to judgment as a matter of law, tendering sufficient evidence to eliminate any material issues of fact from the case. To grant summary judgment it must clearly appear that no material and triable issue of fact is presented (Friends of Animals v Associated Fur Mfrs., 46 NY2d 1065, 390 N.E.2d 298, 416 NYS2d 790 [1979]; Sillman v Twentieth Century-Fox Film Corporation, 3 NY2d 395, 144 N.E.2d 387, 165 NYS2d 498 [1957]). The movant has the initial burden of proving entitlement to summary judgment (Winegrad v N.Y.U. Medical Center, 64 NY2d 851, 476 N.E.2d 642, 487 NYS2d 316 [1985]). Failure to make such a showing requires denial of the motion, regardless of the sufficiency of the opposing papers (Winegrad v N.Y.U. Medical Center, supra). Once such proof has been offered, the burden then shifts to the opposing party, who, in order to defeat the motion for summary judgment, must proffer evidence in admissible form…and must “show [*4] facts sufficient to require a trial of any issue of fact” (CPLR 3212 [b]; Zuckerman v City of New York, 49 NY2d 557, 404 N.E.2d 718, 427 NYS2d 595 [1980]). The opposing party must assemble, lay bare and reveal his proof in order to establish that the matters set forth in his pleadings are real and capable of being established (Castro v Liberty Bus Co., 79 AD2d 1014, 435 NYS2d 340 [2d Dept 1981]).
In support of motion (001), Mount Sinai has submitted, inter alia, an attorney’s affirmation; copies of the notice of claim dated July 2, 2008, summons and complaint, its answer with a cross claim asserted against Sachem, discovery demands, and plaintiff’s verified bill of particulars; a photograph of the wall; copy of the unsigned but certified transcript of the General Municipal Law 50-h hearing of Rebecca Linthwaite dated January 8, 2009; copies of the signed and certified transcript of the examination before trial of Rebecca Linthwaite dated September 21, 2010; the unsigned but certified transcript of Margaret Tuttie on behalf of Sachem dated November 29, 2010; the signed transcript of Karen Blumenthal on behalf of Mount Sinai dated November 29, 2010; and the affidavit of Kenneth R. Demas dated March 15, [*5] 2011, with attendant curriculum vitae.
In support of motion (002), Sachem has submitted, inter alia, two attorney’s affirmations; copies of the notices of claim dated July 2, 2008 with a copy of a photograph of a wall; a copy of the summons and complaint, defendants’ respective answers with cross claims, Mount Sinai’s answer to the cross [**3] claim, plaintiff’s verified bills of particulars: photographs of the wall; a copy of the signed General Municipal Law 50-h transcript of Rebecca Linthwaite dated January 8, 2009; copies of the signed transcript of the examination before trial of Rebecca Linthwaite dated September 21, 2010; Mission Statement by Sachem; the signed and certified transcript of Margaret Tuttle on behalf of Sachem dated November 29, 2010; another copy of the Mission Statement of Sachem with annexed letter from Karen Blumenthal, undated, and a copy of the student accident report signed by Karen Blumenthal; the signed transcript of the examination before trial of Karen Blumenthal on behalf of Mount Sinai dated November 29, 2010; the affidavit of Kenneth R. Demas dated March 15, 2011 with attendant curriculum vitae; and a demand and response to the demand for discovery and [*6] inspection.
Schools are under a duty to adequately supervise the students in their charge and they will be held liable for foreseeable injuries proximately related to the absence of adequate supervision (Mirand v City of New York, 84 NY2d 44, 637 N.E.2d 263, 614 NYS2d 372 [1994]). The school’s standard of duty to a student is what a reasonable prudent parent would have done under the same circumstances (NY PJI 2:227). “The standard for determining whether a school was negligent in executing its supervisory responsibility is, [w]hether a parent of ordinary prudence, placed in the identical situation and armed with the same information, would invariably have provided greater supervision” (Mirand v City of New York, 190 AD2d 282, 598 NYS2d 464, aff’d 84 NY2d 44, 637 N.E.2d 263, 614 NYS2d 372 [1994]; see, In the Matter of the Claim of Jane Doe v Board of Education of Penfield School District, et al, 2006 NY Slip Op 51615U, 12 Misc3d 1197A, 824 NYS2d 768 [Sup. Ct. of New York, Monroe County 2006]).
As set forth in Bowles v The Board of Education of the City of New York and the City of New York, 15 Misc. 3d 1110[A], 839 N.Y.S.2d 431, 2007 NY Slip op 50573[U] [Supreme Court of New York, Kings County 2007], “Schools are under a duty to adequately supervise the students [*7] in their charge and they will be held liable for foreseeable injuries proximately related to the absence of adequate supervision…. To find that a school district has breached its duty to provide adequate supervision, a plaintiff must show that the district had sufficient specific knowledge or notice of the dangerous conduct and that the alleged breach was the proximate cause of the injuries sustained…. Moreover, when an accident occurs in so short a span of time that even the most intense supervision could not have prevented it any lack of supervision is not the proximate cause of the injury and summary judgment in favor of the [defendant school district] is warranted.” citing, Ronan v School District of the City of New Rochelle, citations omitted, quoting Mirand v City of New York, citations omitted, Nocilla v Middle Country School Dist., citations omitted.
Based upon the evidentiary submissions, it is determined that neither Sachem nor Mount Sinai have established prima facie entitlement to summary judgement dismissing the complaint due to the existence of factual issues in the moving papers which preclude summary judgment.
Kenneth Demas set forth in his affidavit that he has been [*8] in the adventure education field since 1982 and has been certified as a national trainer for Project Adventure for 23 years. He set forth the transcripts and materials reviewed and states that the level of supervision was appropriate and in keeping with the nature of the activity. He stated that the Sachem teacher. Margaret Tuttle, was in a position which enabled her to move to either direction in front of or behind the wall, and permitted her to move to an appropriate position in the event that additional spotting was required. He states that both teachers were placed appropriately. He continues that both teachers responded to the loss of balance of Rebecca [**4] in addition to other spotters being present. He continues that the instructions given by Ms. Tuttle was appropriate and in keeping with the accepted model for instruction on this activity. While explaining the challenge to the group, Ms. Tuttle walked the group to the front and rear of the wall and explained the responsibilities associated with each side. She was clear that students were spotters from beginning to end. Demas continues that instruction in any Adventure Education program never explains how to do a particular challenge, [*9] as students, while working together, are to utilize previously learned concepts and experiences to solve the problem. He continues that the wall is considered a low element, and that spotting is the accepted safety procedure for the activity. The use of helmets, matting, and the belay systems is not consistent with industry standards, Demas continues that level 2 certification, which both Karen Blumenthal of Mount Sinai and Tuttle have, involves both a written test and hands on application of skills, such as quality and clarity of instructions, as well as spotting technique, positioning, and practice.
The affidavit of Mr. Demas is not supported by admissible evidence. Expert testimony is limited to facts in evidence (see Allen v Uh, 82 AD3d 1025, 919 NYS2d 179 [2d Dept 2011]; Hornbrook v Peak Resorts, Inc. 194 Misc2d 273, 754 NYS2d 132 [Sup Ct, Tomkins County 2002]; Marzuillo v Isom, 277 AD2d 362, 716 NYS2d 98 [2d Dept 2000]; Stringile v Rothman, 142 AD2d 637, 530 NYS2d 838 [2d Dept 1988]; O’Shea v Sarro, 106 AD2d 435, 482 NYS2d 529 [2d Dept 1984]), which evidence has not been provided herein. Neither the expert or either party has submitted a copy of the industry standards for Project [*10] Adventure, [*11] the number and positioning of spotters for the specific activity, the student to adult ratio, the instructions given to spotters, or the instructions to be provided to students participating in the event pursuant to the industry standard. Although Demas avers that teacher training involves spotting technique, positioning and practice, he does not set forth the standards for the same or aver that such was utilized during the event in which the plaintiff sustained injury. The exact number of students participating has not been established, as Ms. Blumenthal stated she had about fifty students in her two classes and was unsure how many students attended the field trip, but thought it was about 40 students. There was only one teacher supervising the students until Ms. Blumenthal arrived at that particular event, immediately prior to the plaintiff’s fall. Although the defendants claim that Project Adventure is an extracurricular activity and that the plaintiff assumed the risk of the activity, the plaintiff testified that this class was taken in place of the usual physical education class. Thus whether the class was for credit or was an extracurricular activity has not been established.
There [*12] was testimony by Ms. Blumenthal that the event in which the plaintiff was injured was “challenge by choice”, meaning each student did not have to participate in the event. However, the plaintiff testified that her understanding of “challenge by choice” was that she could do the activity by her own free will and that no one was to be forced into an activity. However, when it came time for the wall activity, she and her friends were told they had to do it; they were not told that there would be repercussions if they did not do it. Thus, there are factual issues concerning the definition of “challenge by choice”, if the students had a choice as to participating in the event, or whether there was pressure exerted on them to participate.
There are further factual issues concerning whether the students were properly instructed with regard to the presence and the use of the ropes on the back of the wall, and whether the ropes were suitable to stabilize the student and prevent the student from falling off the narrow platform. The [**5] plaintiff testified that on the date of the incident, there were no mats or other safety precautions. The rope that was on the back wall was used for walking down [*13] the wall and was not there to stabilize when up on the platform. She never noticed loops on the ropes. Ms. Tuttle testified that she tells students there are ropes to put a hand in, if needed, and that there will be spoilers to help them walk down. Additional factual issues exist as to whether the supervision and spotting was adequate, whether the spotters were properly trained and instructed, and whether a parent of ordinary prudence, placed in the identical situation and armed with the same information, would have provided greater supervision to the students including adequate placement and training of the appropriate number of spotters. Although Mr. Demas averred that the use of helmets, matting, or the belay system is not consistent with industry standards, he does not state what the industry standard is, and whether the failure to provide such safety equipment is inconsistent with industry standards. A further question exists as to whether the platform was constructed pursuant to industry standards.
Since defendants failed to establish their entitlement to judgment as a matter of law, the burden has not shifted to the plaintiff to raise a triable issue of tact (see, Krayn v Torella, 40 A.D.3d 588, 833 NYS2d 406, NY Slip Op 03885 [2d Dept 2007] [*14] ; Walker v Village of Ossining, 18 AD3d 867, 796 NYS2d 658 [2d Dept 2005]).
Accordingly, motions (001) and (002) by Sachem and Mount Sinai for summary judgment dismissing the complaint are denied.
Date: Dec. 28, 2011
/s/ W. Gerard Asher
J.S.C.
Murawski v. Camp Nageela, 4 Misc. 3d 1025A; 798 N.Y.S.2d 346; 2004 N.Y. Misc. LEXIS 1542; 2004 NY Slip Op 51045U
Posted: March 26, 2012 Filed under: Legal Case, Summer Camp | Tags: Camp, Long Island, New York, New York City, Recreation, Summary judgment, Summer Camp Leave a commentMurawski v. Camp Nageela, 4 Misc. 3d 1025A; 798 N.Y.S.2d 346; 2004 N.Y. Misc. LEXIS 1542; 2004 NY Slip Op 51045U
[***1] Nina Murawski, individually and as parent and Natural Guardian of Adam Murawski, an Infant, Plaintiffs, v. Camp Nageela, Camp Shevtai Yisroel, Jewish Education Program (JEP) of Long Island, rabbi shenker, rabbi glustein, jeffrey y. Arshravan and Eric Arshravan, an infant, Defendants.
01-2959
SUPREME COURT OF NEW YORK, SUFFOLK COUNTY
4 Misc. 3d 1025A; 798 N.Y.S.2d 346; 2004 N.Y. Misc. LEXIS 1542; 2004 NY Slip Op 51045U
June 10, 2004, Decided
NOTICE: [**1] THIS OPINION IS UNCORRECTED AND WILL NOT BE PUBLISHED IN THE PRINTED OFFICIAL REPORTS.
DISPOSITION: Defendants motion for summary judgment granted; complaint dismissed.
CORE TERMS: infant, supervision, summary judgment, camper, bunkhouse, altercation, personnel, notice, finger, nurse, summer camp, anticipated, fellow, failure to provide, medical care, medical report, counselor, residual, dropped, sworn, mitt
HEADNOTES
[*1025A] Negligence–Duty.
COUNSEL: MALLILO & GROSSMAN, ESQS., Attorneys for Plaintiffs, Flushing, NY.
MOLOD, SPITZ & DeSANTIS, PC, Attorneys for Defendants Camp Nageela, JEP, Rabbi Shenker and Rabbi Glustein, New York, NY.
JUDGES: Denise F. Molia, J.
OPINION BY: Denise F. Molia
OPINION
Denise F. Molia, J.
ORDERED that this motion by defendants Camp Nageela, Jewish Education Program of Long Island, Rabbi Shenker and Rabbi Glustein for summary judgment dismissing the complaint against them is granted.
This is an action to recover damages for personal injuries allegedly sustained by the infant plaintiff, Adam Murawski, then ten years old, when on August 11, 2000, he was assaulted by a fellow camper, defendant Eric Arshravan, in the bunkhouse they shared at defendant Camp Nageela, [**2] a sleep away summer camp operated by defendant Jewish Education Program of Long Island [JEP]. Defendant Rabbi Shenker is the director of JEP and defendant Rabbi Glustein is another employee of JEP. A derivative cause of action is asserted on behalf of infant plaintiff’s mother, plaintiff Nina Murawski.
Plaintiffs seek recovery from the camp defendants on two grounds – improper supervision and a failure to provide proper medical care after the assault. The camp defendants now move for summary judgment dismissing the complaint on the basis that the infant plaintiff’s injuries were the result of a spontaneous altercation that could not have been anticipated by camp officials. Defendants also contend that there was no adverse affect upon the infant plaintiff as a result of any delay in obtaining medical treatment for him. In support, defendants submit, inter alia, copies of the pleadings, a copy of the transcript of the testimony given by the infant plaintiff at his examination before trial, the personal affidavit of defendant Rabbi Shenker, and the sworn medical report of defendants’ examining physician, Dr. Leon Sultan.
At his examination before trial the infant plaintiff Adam [**3] Murawski testified to the effect that he shared a bunkhouse with four or five other boys at the camp, including the infant defendant Eric Arshravan, and a counselor. Adam also testified that Eric was somewhat smaller than him and that the two generally did not “get along well”. Adam stated that he and Eric had once had a previous argument during a kick ball game but that the disagreement did not go beyond Eric’s yelling at him. Adam testified that he that he could not remember whether he had complained about Eric to any of the camp counselors during the two week period prior to the subject incident and that the boys had not engaged in any physical altercations during that time period. Adam further testified that the incident occurred when the two boys were alone in the bunkhouse, that he had gone into the bunkhouse in order to get his baseball mitt and that Eric came in after him. While Adam was looking for his mitt he dropped something and then picked up something of Eric’s because he thought the item he dropped might be underneath or near it. Eric then told Adam to “put it down” and he did so. Adam further testified that the two boys had agreed to share a table and that he thought [**4] Eric became angry because he believed that Adam [***2] had moved one of Eric’s belongings. Shortly thereafter, Eric hit Adam with a hockey stick.
By his personal affidavit, defendant Rabbi Shenker states that at no time prior to the subject incident were the camp personnel advised that Adam had complained of any problems with the infant defendant and that the camp had no written reports of any incidents involving the boys from Adam’s bunkhouse other than the nurse’s report of the subject incident. As for the plaintiffs’ claim that the camp failed to provide proper medical attention for the infant plaintiff, Rabbi Shenker states that Adam was seen by the camp nurse after the incident and she determined that the Adam’s finger should be placed in a splint and that he should be followed, that the camp nurse twice followed up with Adam the next day and was told by Adam that his finger was feeling better. Rabbi Shenker further states that plaintiff Nina Murawski came to the camp two days after the incident to visit Adam and she took him off the camp grounds for several hours. When she brought Adam back to camp, she asked the camp personnel to arrange for an x-ray of Adam’s finger which was later [**5] taken at the emergency room at the local hospital.
The standard of care for persons having children entrusted to their care in a summer camp setting is that of a reasonably prudent parent. In such a setting, constant supervision is neither feasible nor desirable because one of the benefits of such an institution is to inculcate self-reliance in the campers which an overly protective supervision would destroy (Gustin v Association of Camps Farthest Out, Inc., 267 A.D.2d 1001, 700 N.Y.S.2d 327 [1999]). Camps, like schools are not insurers of safety for they cannot reasonably be expected to continuously supervise and control all movements and activities of the campers (Lesser v Camp Wildwood, 282 F. Supp. 2d 139 [2003]). In order to establish a breach of the duty to provide adequate supervision a plaintiff must show that the camp authorities had sufficient specific knowledge or notice of the dangerous conduct which caused the injury; that is, that the third-party acts could have reasonably been anticipated (see, Mirand v City of New York, 84 N.Y.2d 44, 637 N.E.2d 263, 614 N.Y.S.2d 372 [1994].
Here, viewing the record in a light [**6] most favorable to the plaintiffs (see, J. Rosen Furs, Inc. v Sigma Plumbing & Heating Corp., 249 A.D.2d 276, 670 N.Y.S.2d 596 [1998]), there is no factual basis to conclude either that the camp’s agents had knowledge constituting notice of a particular danger to the infant plaintiff prior to the incident or that the incident that caused the infant plaintiff’s injuries was anything other than a sudden, unanticipated independent act by a fellow camper (see, Mirand v City of New York, supra; Foster v New Berlin Central School Dist., 246 A.D.2d 880, 667 N.Y.S.2d 994 [1998]; Schlecker v Connetquot Central School Dist. of Islip, supra). There is also no evidence that the camp’s agents had any actual or constructive notice that the infant defendant was engaged in a prohibited activity or that they had a reasonable opportunity to prevent its continuance prior to the subject altercation (see, Mirand v City of New York, supra; Totan v Bd. of Educ., 133 A.D.2d 366, 519 N.Y.S.2d 374 [1978] app den 70 N.Y.2d 614, 524 N.Y.S.2d 432, 519 N.E.2d 343). The infant plaintiff, [**7] by his own admission, concedes that he notified none of the camp’s personnel concerning his fears of an impeding confrontation with the infant [***3] defendant. Therefore, even assuming, arguendo, that an issue of fact exists regarding the adequacy of the supervision, the need for additional supervision of the infant defendant prior to the incident could not have been apprehended (see, Nocilla v Middle Country School District, 302 A.D.2d 573, 757 N.Y.S.2d 300 [2003]; Foster v New Berlin Central School Dist., supra; McGregor v City of New York, 197 A.D.2d 609, 602 N.Y.S.2d 669 [1993] app den 84 N.Y.2d 802, 617 N.Y.S.2d 136, 641 N.E.2d 157; Schlecker v Connetquot Central School Dist. of Islip, supra).
In opposition, plaintiffs rely upon counsel’s affidavit and the purported affidavit of another camper. Counsel’s affidavit is without probative value as counsel professes no first hand knowledge of the fact and circumstances relating to plaintiffs’ claims (see, Siagkris v K & E Mechanical, Inc., 248 A.D.2d 458, 669 N.Y.S.2d 375 [1998]). The affidavit by the non party infant witness [**8] is also inadmissible as it has not been signed by him. 1 Plaintiff has thus failed to meet the burden of producing proof in admissible form sufficient to require a trial of material questions of fact (Papadopoulos Gardner’s Village, 198 A.D.2d 216, 604 N.Y.S.2d 570 [1984]). The moving defendants are therefore granted summary judgment dismissing plaintiffs’ improper supervision claims.
1 Nor has the Court has considered the affidavit of another non party infant witness attached to the defendants’ Reply papers as that affidavit is not signed by the affiant.
The moving defendants are also entitled to summary judgment with respect to plaintiffs’ remaining claim the gravamen of which is that defendants’ failure to provide the infant plaintiff with prompt medical care for his injuries has resulted in residual injuries. Dr. Leon Sultan, by his sworn medical report, affirms that he is a board-certified orthopedic surgeon who examined Adam Murawski for the defendants. Dr. Sultan opines [**9] that Adam’s left hand is unremarkable in that he is orthopedically stable and neurologically intact, and that the 5th metacarpal fracture is healed without any residual functional impairment. Plaintiffs having come forward with no medical proof to sustain their enhanced injury claim, defendants are entitled to summary judgment.
Accordingly, the motion by defendants Camp Nageela, Jewish Education Program of Long Island, Rabbi Shenker and Rabbi Glustein for summary judgment is granted and the complaint is dismissed as to these defendants. The Court’s computerized records reflect that the action was previously discontinued as to defendants Arshravan by stipulation filed with the County Clerk on August 28, 2001. In addition, plaintiffs’ failure to move for a default within one year after service of the complaint warrants a dismissal of the complaint as against the sole remaining defendant, Camp Shevtai Yisroel (CPLR 3215[c]). The complaint is therefore dismissed in its entirety.
[***4] X FINAL DISPOSITION NON-FINAL DISPOSITION
Miglino, Jr., etc., v Bally Total Fitness of Greater New York, Inc., et al., 2011 NY Slip Op 9603; 2011 N.Y. App. Div. LEXIS 9478
Posted: January 30, 2012 Filed under: Health Club, Legal Case, New York | Tags: AED, Bally Total Fitness, New York, New York City, Supreme Court 1 CommentMiglino, Jr., etc., v Bally Total Fitness of Greater New York, Inc., et al., 2011 NY Slip Op 9603; 2011 N.Y. App. Div. LEXIS 9478
[*1] Gregory C. Miglino, Jr., etc., respondent, v Bally Total Fitness of Greater New York, Inc., et al., appellants. (Index No. 7729/08)
2010-06556
SUPREME COURT OF NEW YORK, APPELLATE DIVISION, SECOND DEPARTMENT
2011 NY Slip Op 9603; 2011 N.Y. App. Div. LEXIS 9478
December 27, 2011, Decided
NOTICE:
COUNSEL: [**1] Morrison Mahoney, LLP, New York, N.Y. (Demi Sophocleous of counsel), for appellants.
Scott E. Charnas (John V. Decolator, Garden City, N.Y., of counsel), for respondent.
JUDGES: PETER B. SKELOS, J.P., JOHN M. LEVENTHAL, LEONARD B. AUSTIN, SANDRA L. SGROI, JJ. SKELOS, J.P., LEVENTHAL and AUSTIN, JJ., concur.
OPINION
APPEAL by the defendants, in an action, inter alia, to recover damages for negligence, from an order of the Supreme Court (Jeffrey Arlen Spinner, J.), dated June 9, 2010, and entered in Suffolk County, which denied their motion pursuant to CPLR 3211(a)(7) to dismiss the complaint for failure to state a cause of action.
OPINION & ORDER
SGROI, J.On this appeal we consider whether General Business Law § 627-a, which mandates that certain health clubs in the State of New York provide an automated external defibrillator device, as well as a person trained in its use, also imposes an affirmative duty of care upon the facility so as to give rise to a cognizable statutory cause of action in negligence for failure to use the device. We conclude that such a cause of action is cognizable. We also conclude that the plaintiff stated a cause of action to recover damages for common-law negligence against the [**2] defendant Bally Total Fitness of Greater New York, Inc. (hereinafter Bally).
At around 7:00 A.M. on March 26, 2007, Gregory Miglino, Sr. (hereinafter the decedent), was playing racquetball at a club located in Lake Grove (hereinafter the gym), owned and operated by Bally, when he suddenly collapsed. According to an affidavit submitted by Kenneth LeGrega, a Bally employee working at the gym that morning, “a gym member informed the front desk” that the decedent had collapsed and a 911 emergency call was then immediately placed. According to the affidavit, LaGrega was a personal trainer who had also completed a course in the operation of automated external defibrillator (hereinafter AED) devices, and had obtained a certification of completion of a course in the training of cardiopulmonary resuscitation provided by the American Heart Association. LaGrega’s affidavit further stated:
“I ran to assess the situation [and] [w]hen I arrived at the scene, I observed the decedent lying on his back with his eyes open, breathing heavily and with normal color. I checked for and found a faint pulse at that time. When I later returned to the scene, [another employee] was on the scene and had brought [**3] the club’s AED to the decedent’s side. Additionally, a medical doctor and medical student were attending to the decedent.”
[*2]
The report of the ambulance crew that responded to the 911 call stated, inter alia, that the emergency call was received at 6:59 A.M., the emergency medical services crew arrived at the gym at 7:07 A.M., and the ambulance arrived at Stony Brook Hospital at 7:45 A.M. The report further indicated that the decedent was “unconscious and unresponsive . . . on arrival [and] fine V-fib shocked.” The decedent could not be revived and he was pronounced dead after arriving at the hospital.
In early 2008 the plaintiff, Gregory C. Miglino, Jr., as executor of the decedent’s estate, commenced an action against Bally and Bally Total Fitness Corporation seeking, inter alia, to recover damages for negligence. The complaint alleged two causes of action, one against each defendant. Each cause of action sounded in negligence and was based upon the defendants’ failure to use an AED on the decedent. The complaint alleged, in part, as follows:
“[On the date of the incident Bally] was required by New York State statute to have in attendance at all times during business hours, at least one [**4] employee . . .who held a valid certification of completion of a course in the study of the operation of AED’s and a valid certification of completion of a course in the study of cardiopulmonary resuscitation provided by a nationally recognized organization . . . [Bally] negligently failed to use the AED on plaintiff’s decedent and/or failed to use said AED within sufficient time to save his life, and was otherwise negligent in regard to its failure to employ or properly employ life-saving measures regarding plaintiff’s decedent.”
Before any discovery had taken place, the defendants moved pursuant to CPLR 3211(a)(7) to dismiss the complaint for failure to state a cause of action. The defendants argued that the branch of the motion which was to dismiss the complaint insofar as asserted against Bally Total Fitness Corporation should be granted because it had no ownership or management interest in the gym. The defendants further argued that the branch of the motion which was to dismiss the complaint insofar as asserted against Bally should be granted because it was “immune from liability arising out of the lack of success of emergency response efforts by virtue of . . . Public Health Law § 3000-a [**5] [which provides] that a person who voluntarily renders emergency treatment outside of a hospital or other location is not liable for injuries to or death of the person receiving the emergency treatment.” The defendants further argued that Bally’s employees had no affirmative duty to use the available AED upon the decedent after he collapsed.
In opposition, the plaintiff argued, inter alia, that the gym was required, by statute, to have an AED on its premises, and a person trained to use such device, and that Bally could not rely upon the Good Samaritan statutes (General Business Law § 627-a[3]; Public Health Law § 3000-a) to insulate itself from liability. The plaintiff did not oppose that branch of the motion which was to dismiss the complaint insofar as asserted against Bally Total Fitness Corporation, and conceded that “[said] entity apparently does not own, operate or manage the [gym].”
The Supreme Court denied the defendants’ motion, stating simply that “the pleadings maintain causes of action cognizable at law.” This appeal by the defendants ensued.
We begin our analysis with a summary of the statutes relevant to the issues raised herein.
“General Business Law § 627-a: automated [**6] external defibrillator requirements:
“1. Every health club [with more than 500 members] shall have . . . at least one [AED], and shall have in attendance, at all times during staffed business hours, at least one individual performing employment . . . who holds a valid certification of completion of a course in the study of the operation of AEDs and a valid certification of the completion of a course in the training of cardiopulmonary resuscitation provided by a nationally recognized organization or association.
[*3]
“2. Health clubs and staff[s] pursuant to subdivision one of this section shall be deemed a public access defibrillation provider’ as defined in [Public Health Law § 3000-b[1]] and shall be subject to the requirements and limitation[s] of such section.
“3. Pursuant to [Public Health Law §§ 3000-a and 3000-b], any public access defibrillation provider, or any employee . . . of the provider who, in accordance with . . . this section, voluntarily and without expectation of monetary compensation renders emergency medical or first aid treatment using an AED which has been made available pursuant to this section, to a person who is unconscious, ill or injured, shall be liable only pursuant [**7] to [Public Health Law § 3000-a].
“Public Health Law § 3000-a: Emergency medical treatment:
“1. [A]ny person who voluntarily and without expectation of monetary compensation, renders first aid or emergency treatment . . . outside a hospital, doctor’s office or any other place having proper and necessary medical equipment, to a person who is unconscious, ill or injured, shall not be liable for damages . . . for the death of such person alleged to have occurred by reason of an act or omission in the rendering of such emergency treatment unless it is established that such injuries [or death] was caused by gross negligence on the part of such person.
“2. (i) An [entity that makes available an AED as required by law], or (ii) an emergency health care provider under a collaborative agreement pursuant to [Public Health Law § 3000-b] with respect to an AED . . . shall not be liable for damages arising either from the use of that equipment by a person who voluntarily and without expectation of monetary compensation renders first aid or emergency treatment at the scene of . . . a medical emergency or . . .; provided that this subdivision shall not limit the person’s or entity’s . . . or emergency [**8] health care provider’s liability for his, her or its own negligence, gross negligence or intentional misconduct.
“Public Health Law § 3000-b: Automated external defibrillators
“1. Definitions . . . (b) Emergency health care provider’ means (i) a physician . . . or (ii) a hospital . . . (c) Public access defibrillation provider’ means a person . . . or other entity possessing or operating an [AED] pursuant to a collaborative agreement under this section.
“2. Collaborative agreement. A person . . . or other entity may purchase, acquire, possess and operate an [AED] pursuant to a collaborative agreement with an emergency health care provider. The collaborative agreement shall include a written agreement and written practice protocols, and policies and procedures that shall assure compliance with this section. The public access defibrillation provider shall file a copy of the collaborative agreement with the department and with the appropriate regional council prior to operating the [AED].
“3. Possession and operation of [AED] No person may operate an [AED without proper training]. However, this section shall not [*4] prohibit operation of an [AED] by a person who operates the [AED] other than [**9] as part of or incidental to his employment or regular duties, who is acting in good faith, with reasonable care, and without expectation of monetary compensation, to provide first aid that includes operation of an [AED]; nor shall this section limit any good samaritan protections provided in section [3000-a] of this article.”
This Court has not previously interpreted any of these statutes under circumstances such as those presented by this case. The only other Appellate Division case which has addressed similar factual circumstances is Digiulio v Gran, Inc. (74 AD3d 450, affd 17 NY3d 765), wherein the plaintiff’s decedent suffered an apparent heart attack while exercising at a health club facility. In the Digiulio case, the plaintiff commenced an action against the health club owner and then moved for partial summary judgment on the issue of liability based on common-law negligence, or pursuant to a theory of negligence per se based upon an alleged violation of General Business Law § 627-a. The defendants opposed the motion and cross-moved for summary judgment dismissing the complaint. The Supreme Court denied the plaintiff’s motion and granted the defendants’ motion. On appeal, the [**10] Appellate Division, First Department, affirmed, stating, in part:
“We agree with the motion court that plaintiff has not established a common-law negligence claim . . . After the heart attack, the club’s employees more than fulfilled their duty of care by immediately calling 911 and performing CPR, had no common-law duty to use the AED, and could not be held liable for not using it . . . Turning to the statutory claim, we reject plaintiff’s argument that [GBL] § 627-a implicitly obligated the club to use its AED to treat [the decedent]. While the statute explicitly requires health clubs to have AEDs and people trained to operate them on their premises, it is silent as to the club’s duty, if any, to use the devices” (Digiulio v Gran, Inc., 74 AD3d at 453).
While the Digiulio case involved a motion for summary judgment, the First Department’s reasoning suggests that there is no viable cause of action against a health club based upon the failure to use an available AED.
Thereafter, the plaintiff in Diguilio was granted leave to appeal to the Court of Appeals. In a decision dated June 14, 2011, the Court decided as follows:
“Assuming arguendo that General Business Law § 627-a implicitly created [**11] a duty for defendants to use the [AED] the section required them to provide at their facility, plaintiff cannot recover because she failed to raise a triable issue of fact demonstrating that defendants’ or their employees’ failure to access the AED was grossly negligent (see General Business Law § 627-a[3]; Public Health Law § 3000-a). Defendants did not breach any common-law duty to render aid to the decedent” (DiGiulio v Gran, Inc., 17 NY3d 765, 767).
The Court of Appeals left open the question of whether General Business Law § 627-a creates a duty upon a health club to use the AED which it is required to provide. We conclude that there is such a duty.
The risk of heart attacks following strenuous exercise is well recognized, and it has also been documented that the use of AED devices in such instances can be particularly effective if defibrillation is administered in the first few minutes after the cardiac episode commences (see e.g. Balady, Chaitman, Foster, Froelicher, Gordon & Van Camp, Automated External Defibrillators in Health/Fitness Facilities, Circulation Journal of the American Heart Association 2002, available at http://circ.ahajournals.org/content/105/9/1147 full; Senate [**12] Introducer Mem in Support, Bill jacket, L 1998, ch 552, at 4 [“Sudden cardiac arrest is a major unresolved health problem. Each year, it strikes more than 350,000 Americans–nearly 1,000 per day. More than 95% of these people die because life-saving defibrillators arrive on the scene too late, if at all. The American Heart Association estimates that close to 100,000 deaths nationwide could be prevented each year if automated external defibrillators . . . were more widely distributed.”]). It is also clear that the [*5] Legislative intent behind General Business Law § 627-a was to make AED devices readily available for use in gyms. Indeed, the 2004 Legislative Memorandum in support of General Business Law § 627-a states the following as “[j]ustification” for the statute:
“This [bill] would ensure a higher level of safety for thousands of individuals who belong to health clubs. According to the American Heart Association, 250,000 Americans die every year due to sudden cardiac arrest. A quarter of these deaths could be avoided if an [AED] is on hand for immediate use at the time of emergency . . . Because health clubs are places where individuals raise their heart rates through physical exercise, [**13] the chance of cardiac arrest increases. Having an AED on hand could save lives” (NY Assembly Mem in Support, Bill Jacket, L 2004, ch 186, at 4).
Accordingly, the laudatory purpose of the statute was to increase the number of lives that could be saved through the use of available AED devices at health club facilities. Although the statute does not contain any provision that specifically imposes an affirmative duty upon the facility to make use of its required AEDs, it also does not contain any provision stating that there is no duty to act (cf. Public Health Law § 1352-b, which provides for the mandatory posting in public eating establishments of instructions to aid in choking emergencies, but also contains a provision entitled “no duty to act”). Moreover, it is illogical to conclude that no such duty exists. We are aware that ” legislative enactments in derogation of [the] common law, and especially those creating liability where none previously existed,’ must be strictly construed” (Vucetovic v Epsom Downs, Inc., 10 NY3d 517, 521, quoting Blue Cross & Blue Shield of N.J., Inc. v Philip Morris USA Inc., 3 NY3d 200, 206; see McKinney’s Cons Laws of NY, Book 1, Statutes § 301[c]). Nevertheless, [**14] such strict construction should not be utilized to eviscerate the very purpose for which the legislation was enacted. “A court should avoid a statutory interpretation rendering the provision meaningless or defeating its apparent purpose” (State of New York v Cities Serv. Co., 180 AD2d 940, 942; see Matter of Industrial Commr. of State of N.Y. v Five Corners Tavern, 47 NY2d 639, 646-647; see also Zappone v Home Ins. Co., 55 NY2d 131, 137; McKinney’s Cons Laws of NY, Book 1, Statutes § 145). “It is the spirit, the object, and purpose of the statute which are to be regarded in its interpretation” (Westchester County Socy. for Prevention of Cruelty to Animals v Mengel, 266 App Div 151, 154-155, affd 292 NY 121).
Applying these principles, and inasmuch as there is no dispute that General Business Law § 627-a requires certain health club facilities to provide an AED on the premises, as well as a person trained to use such device, it is anomalous to conclude that there is no duty to use the device should the need arise. Stated differently, why statutorily mandate a health club facility to provide the device if there is no concomitant requirement to use it? This conclusion is further buttressed [**15] by the fact that the Legislature deemed it appropriate to partially immunize the health clubs from liability, which may arise from their use of the AED, by including language within General Business Law § 627-a that referenced the “Good Samaritan” provisions of the Public Health Law (see General Business Law § 627-a [3]; Public Health Law § 3000-a). Such “protection” could be considered superfluous if the statute did not also impose a duty upon the health clubs to use, or attempt to make use of, the device, depending upon the circumstances of the particular medical emergency. In addition, pursuant to General Business Law § 627-a, as defined by Public Health Law § 3000-b(1)(b), (c), and § 3000-b(2), the gym was a “public access defibrillation provider” and, thus, was required to have in place a “collaborative agreement” with an emergency health care provider (i.e., cardiac emergency doctor or hospital providing emergency care) (Public Health Law §§ 3000-a, 3000-b). Again, the requirement of such an agreement could be viewed as unnecessary if there were no obligation upon the health club facility to attempt to use the AED if the circumstances warranted such use.
In the case at bar, it [**16] is undisputed that, at the time the decedent collapsed, the gym had an available AED on its premises and there was an employee present who had been trained in the use of the device. Indeed, it was this individual, LaGrega, who initially responded to the decedent. LaGrega also stated in his affidavit that “the club’s AED [had been brought] to the decedent’s side.” However, for reasons that are not entirely clear, the gym’s AED device was never used on the decedent. LaGrega’s affidavit suggests that he perhaps deferred to the medical doctor who responded to the internal announcement which had been made in the gym, seeking the [*6] assistance of anyone with medical training. Hence, it may be that the doctor decided that the AED was contraindicated. However, based upon the record before us, such a conclusion would amount to mere speculation.
In any event, unlike the procedural posture of Digiulio v Gran, Inc. (74 AD3d 450), which involved motions for summary judgment, the defendants herein seek dismissal for failure to state a cause of action pursuant to CPLR 3211(a)(7). In determining a motion for failure to state a cause of action, the court must “accept the facts as alleged in the complaint [**17] as true, accord plaintiffs the benefit of every possible favorable inference, and determine only whether the facts as alleged fit within any cognizable legal theory” (Leon v Martinez, 84 NY2d 83, 87-88; see Nonnon v City of New York, 9 NY3d 825). “Whether [the] plaintiff can ultimately establish [his] allegations is not part of the calculus in determining a motion to dismiss [made pursuant to CPLR 3211(a)(7)]” (ECBI, Inc. v Goldman, Sachs & Co., 5 NY3d 11, 19; see Ginsburg Dev. Cos., LLC v Carbone, 85 AD3d 1110). Accordingly, in light of the facts as alleged by the plaintiff, coupled with our conclusion that General Business Law § 627-a imposes an inherent duty to make use of the statutorily required AED, we conclude that the complaint states a cognizable cause of action to recover damages based upon Bally’s failure to use its AED upon the decedent.
To the extent that the defendants argue that the complaint should have been dismissed insofar as asserted against Bally because it is immune from liability under the Good Samaritan provisions of General Business Law § 627-a, that argument is misplaced. The issue at bar is not whether Bally was negligent in the course of its use of the AED. [**18] Instead, as set forth in the beginning of this opinion, our focus is whether General Business Law § 627-a gives rise to a statutory cause of action sounding in negligence based upon the failure to use the device. While General Business Law § 627-a does incorporate the provision of the Good Samaritan law requiring a showing of gross negligence when the statutorily required AED is used, where, as here, the cause of action is based on the failure to employ the device, as opposed to the manner in which it was employed, the gross negligence standard is not applicable.
In addition, the defendants were not entitled to dismissal of the complaint insofar as asserted against Bally for failure to state a cause of action based solely upon common-law negligence. It is settled that a duty of reasonable care owed by a tortfeasor to a plaintiff is elemental to any recovery in negligence (see Pulka v Edelman, 40 NY2d 781, 782; Palsgraf v Long Is. R.R. Co., 248 NY 339, 344). To prove a prima facie case of negligence, a plaintiff must demonstrate the existence of a duty of care owed to the plaintiff, a breach of that duty, and that the breach of such duty was a proximate cause of his or her injuries (see [**19] Pulka v Edelman, 40 NY2d 781; Gordon v Muchnick, 180 AD2d 715; see also Akins v Glens Falls City School Dist., 53 NY2d 325,333). Absent a duty of care, there is no breach, and without a breach, there can be no liability (see Pulka v Edelman, 40 NY2d 781; Gordon v Muchnick, 180 AD2d 715). In addition, foreseeability of an injury does not determine the existence of duty (see Strauss v Belle Realty Co., 65 NY2d 399, 402; Pulka v Edelman, 40 NY2d 781). However, “[u]nlike foreseeability and causation, both generally factual issues to be resolved on a case-by-case basis by the fact finder, the duty owed by one member of society to another is a legal issue for the courts” (Eiseman v State of New York, 70 NY2d 175, 187, citing De Angelis v Lutheran Med. Center, 58 NY2d 1053, 1055).
Therefore, the question is whether Bally owed any duty to the decedent. Generally speaking, one does not owe a duty to come to the aid of a person in peril, whether the peril is medical or otherwise (see McDaniel v Keck, 53 AD3d 869, 872; Walsh v Town of Cheektowaga, 237 AD2d 947; see also Plutner v Silver Assoc., Inc, 186 Misc 1025; Chappill v Bally Total Fitness Corp., 2011 NY Slip Op 30146[U]). However, ” one [**20] who assumes a duty to act, even though gratuitously, may thereby become subject to the duty of acting carefully'” (Mirza v Metropolitan Life Ins. Co., 2 AD3d 808, 809, quoting Nallan v Helmsley-Spear, Inc., 50 NY2d 507, 522).
In the case at bar, LaGrega assumed a duty by coming to the decedent’s assistance. By his own admission, LaGrega directed that a 911 emergency call be made, sought medical assistance within the club, and took the decedent’s pulse. However, he did not make use of the available AED, even though the device had been brought to the decedent’s side. It could be argued that since LaGrega was trained in the use of the AED, his failure to use the device was tantamount to not acting carefully. On the other hand, it may ultimately be proven that LaGrega acted reasonably under the circumstances, and that no liability can attach to the defendants for the decedent’s death. These are questions which cannot be resolved at this procedural juncture. Moreover, as noted in our above discussion regarding the statutory duty under General Business Law § 627-a, the issue of [*7] whether the plaintiff can ultimately prove his factual allegations also does not figure into the determination [**21] of whether the common-law negligence claim should be dismissed for failure to state a cause of action. Accordingly, we conclude that the separate cause of action based upon common-law negligence was not subject to dismissal for failure to state a cause of action (see CPLR 3211[a][7]; Leon v Martinez, 84 NY2d 83). Therefore, the Supreme Court properly denied that branch of the defendants’ motion pursuant to CPLR 3211(a)(7) which was to dismiss the complaint for failure to state a cause of action insofar as asserted against Bally.
As indicated, the plaintiff did not oppose that branch of the motion which was to dismiss the complaint insofar as asserted against the defendant Bally Total Fitness Corporation and, in fact, conceded that “[said] entity apparently does not own, operate or manage the subject health club.” Moreover, even on appeal, the plaintiff does not dispute the contention by Bally Total Fitness Corporation that it was entitled to dismissal of the complaint insofar as asserted against it. Accordingly, that branch of the motion which was to dismiss the complaint insofar as asserted against that defendant should have been granted.
The order is modified, on the law and the facts, [**22] by deleting the provision thereof denying that branch of the defendants’ motion pursuant to CPLR 3211(a)(7) which was to dismiss the complaint insofar as asserted against Bally Total Fitness Corporation, and substituting therefor a provision granting that branch of the motion; as so modified, the order is affirmed.
SKELOS, J.P., LEVENTHAL and AUSTIN, JJ., concur.
ORDERED that the order is modified, on the law and the facts, by deleting the provision thereof denying that branch of the defendants’ motion pursuant to CPLR 3211(a)(7) which was to dismiss the complaint insofar as asserted against Bally Total Fitness Corporation, and substituting therefor a provision granting that branch of the motion; as so modified, the order is affirmed, without costs or disbursements.
Berlin v. Nassau County Council, Boy Scouts of America, 229 A.D.2d 414, 645 N.Y.S.2d 90
Posted: October 25, 2010 Filed under: Legal Case, Minors, Youth, Children, New York, Summer Camp, Youth Camps | Tags: Boy Scout, Boy Scouts of America, Brian Thomson, Florida, Nassau County New York, New York, New York City, United States Leave a commentRita Berlin et al., Respondents,
vs.
Nassau County Council, Boy Scouts of America et al., Defendants, and Hugh Brickley, Appellant.
95-05684
Supreme Court Of New York, Appellate Division, Second Department
229 A.D.2d 414, 645 N.Y.S.2d 90, 1996 N.Y. App. Div. Decision
July 8, 1996, Decided
Devitt, Spellman, Barrett, Callahan, Leyden & Kenny, LLP., Smithtown, N.Y. (L. Kevin Sheridan of counsel), for appellant. Hershman & Leicher, P.C., New York, N.Y. (Harold M. Hershman of counsel), for respondents.
Pizzuto, J. P., Santucci, Altman and Hart, JJ., concur.
{*414} Ordered that the order is reversed insofar as appealed from, on the law, with costs, the motion is granted, the complaint and cross claims insofar as asserted against the appellant are dismissed, and the action against the remaining defendants is severed.
Brian Thomson acquired a slingshot from a store in Florida while on a trip with his Boy Scout troop. The appellant Hugh Brickley and the defendants Kenneth Bistyga and Philip Lembo were the chaperones for the trip. Brickley immediately confiscated the slingshot and did not return it to Brian until after the trip when he left Brian with his parents in Delaware. Approximately one week later, after the Thomson family had returned to New York, the infant plaintiff Daniel Berlin was injured when he and Brian were playing with the slingshot in Daniel’s backyard.
Any duty on the part of Brickley to supervise or control the activities of Brian terminated when he returned the child to {*415} his parents‘ custody (see, Purdy v Public Adm’r of County of Westchester, 72 N.Y.2d 1, 8-9; see also, Pratt v Robinson, 39 N.Y.2d 554, 560; Griffith v City of New York, 123 A.D.2d 830, 832). Even assuming that Brickley was negligent in returning the slingshot to Brian, the alleged negligent supervision by Brian‘s parents, who were fully aware that he possessed and was using the slingshot, was a superseding intervening cause which attenuated any negligence on the part of Brickley from the ultimate injury to Daniel (see, Nolechek v Gesuale, 46 N.Y.2d 332, 338-339; Elardo v Town of Oyster Bay, 176 A.D.2d 912, 914). Consequently, Brickley’s motion for summary judgment should have been granted.
Pizzuto, J. P., Santucci, Altman and Hart, JJ., concur.
Two reasons why you want the release to be upheld in court
Posted: July 23, 2008 Filed under: Uncategorized | Tags: Bullriding, Manhattan, Mechanical bull, New York, New York City, Rockefeller Center Leave a comment1. Because you want to support release law
2. Because idiots, or better drunk idiots should not be able to sue.
The New York Daily News is reporting two individuals have filed suit against a Manhattan bar, Johnny Utah’sover injuries they received when they were
Cover via Amazon
thrown from a mechanical bull.
See Woman tossed from bull ride sues NY restaurant, Mechanical Bull Suit Goes To Court, Raging bull rider suing restaurant and Johnny Utah’s slapped with second lawsuit over mechanical ‘menace’.
You first have to overcome the issue of a “cowboy bar’ in Manhattan. If that bothers you definitely don’t go the bar’s website, the theme from old spaghetti’s westerns and cows mooing alone will crack you up…..or at least those of us who live in the west. But then you realize it is just a bar that has held onto a theme….for twenty years. Urban Cowboy?
The first patron is claiming that the bar should not have allowed him to ride the bull inebriated. Of course it is a bar where most people go to drink and become inebriated. The suit describes the bull as a “danger” because it lacks the “proper safeguards and padding to break falls.” The writer describes the bull as “furry with padded horns.”
Another article describes the second rider suing claiming “”assault and battery” because she was allowed to ride the bull at Johnny Utah’s in Rockefeller Center.”
So why am I writing about these lawsuits. Not a lot of outdoor recreation in New York City that most of my articles are about. However in both cases the patrons signed a release before climbing on the “dangerous beast.” New York law is always tricky at best because of General Obligation Law § 5-326 Releases not valid in places of amusement for a fee. This statute states that releases are void if the signor paid a fee to enjoy the amusement. Here the issue will be did the bar charge to ride the bull or to get through the door.
Releases are also interpreted narrowly and that interpretation varies based on the court. See Case Brief: New York upholds release for negligence claim with purchase of paraglider, Poorly crafted release and court’s interpretation of certification dooms defendant, Case Brief: New York Court Invalidates Release Lacking Clear Language, and NY State Law Does Not Prohibit Releases in All Cases.
Someplace there is a cowboy in Wyoming picking him or herself up off the ground after being violently thrown from a real bull with real horns who is mean or maybe just mad and who landed on hard dirt. No padded horns, no padded landing area just doing what real cowboys do. Oh, and no release because real cowboys assume the risk and cowboy up.
Recreation Law 