Davis v Town Sports Intl.

[*1] Davis v Town Sports Intl. 2015 NY Slip Op 51393(U) Decided on October 1, 2015 Appellate Term, First Department Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. This opinion is uncorrected and will not be published in the printed Official Reports.

Decided on October 1, 2015
SUPREME COURT, APPELLATE TERM, FIRST DEPARTMENT
PRESENT: Shulman, J.P., Hunter, Jr.,J.
570785/14

June Davis, Plaintiff-Appellant, -

against

Town Sports International d/b/a New York Sports Club, Defendant-Respondent.

Plaintiff appeals from an order of the Civil Court of the City of New York, New York County (Jennifer G. Schecter, J.), dated June 21, 2013, which granted defendant's motion for summary judgment dismissing the complaint and denied her cross motion for summary judgment.

Per Curiam.

Order (Jennifer G. Schecter, J.), dated June 21, 2013, affirmed, with $10 costs.

Plaintiff, a regular user of the treadmills at defendant's health club, seeks damages for injuries she suffered when she fell while attempting to get on a treadmill on June 8, 2003. In moving for summary judgment, defendant made a prima facie showing of entitlement to judgment as a matter of law by submitting evidence - including plaintiff's deposition testimony - establishing that plaintiff was unable to identify the cause of her fall, and could only speculate as to the cause (see Smith v City of New York, 91 AD3d 456-457 [2012], lv denied 21 NY3d 858 [2013]). In opposition, plaintiff failed to raise any triable issue. Even accepting plaintiff's speculation that the injury occurred when she stepped onto a treadmill that another member failed to turn off, such claim is barred by the doctrine of primary assumption of the risk (see DiBenedetto v Town Sports Intl., LLC, 118 AD3d 663 [2014]).

This constitutes the decision and order of the Court.

I concur I concur

Decision Date: October 01, 2015