Lipinczyk v Atlas Health & Fitness, Inc.

[*1] Lipinczyk v Atlas Health & Fitness, Inc. 2005 NY Slip Op 50706(U) Decided on April 27, 2005 Supreme Court, Monroe County Polito, J. Published by New York State Law Reporting Bureau pursuant to Judiciary Law ยง 431. This opinion is uncorrected and will not be published in the printed Official Reports.

Decided on April 27, 2005
Supreme Court, Monroe County

Catherine Lipinczyk and David Lipinczyk as husband of Catherine Lipinczyk, Plaintiffs,

against

Atlas Health and Fitness, Inc., Defendant.



02/9271



SCHIANO LAW OFFICE, P.C.

CHARLES SCHIANO, JR., ESQ., of Counsel

Attorney for Plaintiffs

Office and P.O. Address

315 Wilder Building

Rochester, NY 14614

PINSKY & SKANDALIS

LAUREN M. MILLER, ESQ., of Counsel

Attorneys for Defendant

Office and P.O. Address

5790 Widewaters Parkway

P.O. Box 250

Syracuse, NY 13214-0250

William P. Polito, J.

Relief Requested:

Defendant seeks summary judgment dismissing plaintiff's complaint in its [*2]entirety.

Plaintiff opposes.

DECISION:

Defendant's motion is denied.

FACTS:

The plaintiff, a temporary member of the defendant's health club, was injured on January 7, 2002 as a first or second time participant in defendant's "step" aerobics class. She alleges that the step moved during the exercise causing her to fall. The "step" consisted of 2 or 4 risers on each side with a platform across. The plaintiff had assembled the step with materials provided by the health club.

Plaintiff alleges defendant was negligent in failing to assure by observation or proper instruction to plaintiff that the risers were properly assembled before use, in using a step at an inappropriate height for her level of fitness and/or ability, ie., a 6" instead of a 4" height, and using non-locking multi-piece risers rather than a single 4" riser.

The defendant attributes the cause solely to plaintiff's conduct in misstepping during the exercise, an assumed risk of the activity, which precludes liability against the defendant. Defendant by submission of an expert also factually disputes plaintiff's assertion that the steps provided were inappropriate for her level of fitness and/or ability, or were in any way inappropriate.

The plaintiff responded with its own expert's affidavit disputing the defendant's expert. Plaintiff's expert Stephen Schwartz, Ph.D. opines that plaintiff as a beginner under the AFAA rules should have been advised by the instructor in using a single four inch step and not a non-locking multi-riser stepper which was six inches in height. (Schwartz aff dated 2/17/05). Plaintiff further alleges that defendant's failure to supervise and instruct the proper assembly and/or proper use of the inappropriate device for plaintiff's skill level and failure to warn of the risks associated therewith, all required by AFAA created a dangerous condition [*3]resulting in severe injury to plaintiff. (Schwartz aff).

LAW AND RATIONALE:

CPLR 3212(b) provides, in relevant part, that a motion for summary judgment "shall be granted if, upon all the papers and proof submitted, the cause of action or defense shall be established sufficiently to warrant the court as a matter of law in directing judgment in favor of any party." Summary Judgment is a "drastic remedy, and procedural equivalent of a trial, and should not be granted where triable issues of fact are raised that cannot be resolved on conflicting affidavits." (Epstein v Scally, 99 AD2d 713, 714 (1st Dept 1984)). "Issue finding, not issue, determination, is the appropriate function of summary judgment." Once the moving party has established a prima facie showing of entitlement to Summary Judgment, tendering sufficient evidence to demonstrate the absence of any material issue of fact, the opponent must raise material and triable issues of fact. (Menzel v. Plotnick, 202 AD2d 558, 559, (2Dept., 1994)). The papers shall be carefully scrutinized in a light most favorable to the non moving party.

Assumption of Risk

Summary Judgment is not available as there is a dispute as to whether the cause was merely a misstep of plaintiff, an assumed risk of the activity, or was caused by the negligence of the defendant, which was not an assumed risk. (Raquel Royal v. City of Syracuse, 309 AD2d 1284, (4th Dept., 2003)).

Further, the conflicting opinions between the experts create a question of fact for jury resolution regarding the issue of negligence. (Abato v. Millar El;ev., 261 Ad2d 873, (4th Dept., 1999); Wright v. Shapiro, 2005 NY App Div. Lexis 2826, (4th Dept., 2005)).

Accordingly, defendants' motion for summary judgment is denied.

This shall constitute the decision and order of the Court. The signing of this decision and order shall not constitute entry or filing under CPLR 2220. Counsel is not relieved from the provisions of that rule regarding entry, filing and notice of entry. However, the filing of the underlying motion papers upon which this motion was made is hereby dispensed with pursuant to CPLR 2220. Attorney for [*4]the plaintiffs is directed to enter this Decision/Order without notice and to serve all attorneys of record with a copy of this decision with notice of entry.

SO ORDERED.

Dated this 27th day of April, 2005 at Rochester, New York.

______________________________

HON. WILLIAM P. POLITO

JUSTICE SUPREME COURT