Wee v AGT Crunch New York, LLC

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Wee v AGT Crunch New York, LLC 2012 NY Slip Op 31997(U) July 13, 2012 Supreme Court, New York County Docket Number: 118326/2009 Judge: Lucy Billings Republished from New York State Unified Court System's E-Courts Service. Search E-Courts (http://www.nycourts.gov/ecourts) for any additional information on this case. This opinion is uncorrected and not selected for official publication. [* 1] SUPREME COURT OF THE STATE OF NEW YORK - NEW YORK COUNTY PRESENT: LUCY BILLINGS J.S.C. PART fb Justice Index Number : 11832612009 WEE, SUE ANN INDEX NO. VS MOTION DATE AGT CRUNCH NEW YORK MOTION SEQ. NO. Sequence Number : 003 MOTION CAL. NO. SUMMARY JUDGMENT this motlon tolfor PAPERS NUMBERED Notice of Motion/ Order to Show Cause - Affldavite - Exhibits ... 1-3 * Answering Affidavits - Exhibite F Replylng Affidavlts Cross-Motion: Dated: Yes No cc/w;l m i j r y 5 7 ll311r Q Check one: J. S. C. J.5.C. @ NON-FINAL DISPOSITION 0 DO NOT POST 0 REFERENCE FINAL DISPOSITION Check if appropriate: E;k;Jr;. 0 SUBMIT ORDER/ JUDG. SETTLE ORDER/ JUDG. [* 2] SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF NEW YORK: PART 46 _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ I _ _ _ _ _ _ SUE ANN WEE, -X _ _ _ _ _ _ _ Index No. 1 1 8 3 2 6 / 2 0 0 9 Plaintiff DECISION AND ORDER -againstAGT CRUNCH NEW YORK, LLC, AGT CRUNCH NEW YORK, LLC d / b / a CRUNCH FITNESS, AGT CRUNCH ACQUISITION, LLC, AGT CRUNCH ACQUISITION, LLC d/b/a CRUNCH FITNESS, and ROC-LE TRIOMPHE ASSOCIATES, LLC, FILED JUL 27 a 2 DefendantEt COUNTY CLERKS OFFICE LUCY BILLINGS, J.S.C.: Plaintiff sues for Ethoulder injuries she Etuetained performing an inversion maneuver, requiring a dancer to turn her body upside down on a pole, during or immediately a f t e r a pole dancing c l a s s June 22, 2009, at defendants' fitness facility. After defendants moved for summary judgment, the parties stipulated that plaintiff and co-defendants released a l l claims against defendant Roc-Le Triomphe Associates, LLC, the owner of the premises. After oral argument and unsuccessful attempts at settlement, the court denies the remaining defendants' motion f o r summary judgment for reasons explained below. C.P.L.R. § 3212(b). I. SUMMARY JUDGMENT STANDARDS To obtain summary judgment dismissing t h e action, defendants must make a prima facie showing of entitlement to judgment as a matter of law, through admissible evidence eliminating a l l wee. 14 0 1 [* 3] material issues of fact. C.P.L.R. 5 3212(b); Smalls v . AJI Indue., Inc., 10 N . Y . 3 d 7 3 3 , 7 3 5 ( 2 0 0 8 ) ; JMD Holdinq Corp. v . ConqreRs Fin. Corp., 4 N.Y.3d 3 7 3 , 384 (2005); Giuffrida v. Citibank C o r p . , 100 N.Y.2d 72, 81 ( 2 0 0 3 ) . If defendants ,satisfy this standard, the burden shifts to plaintiff to rebut that prima facie showing, by producing evidence, in admissible form, sufficient to require a trial of material factual issues. Norales v. D & A Food S e n . , 10 N.Y.3d 911, 913 (2008); Hyman v. Queens County Bancorp, Inc., 3 N.Y.3d 7 4 3 , 7 4 4 (2004). In evaluating the evidence for defendants motion, the court must construe the evidence in t h e light most favorable to plaintiff and accept h e r version of the facts as true. Triborouqh Bridqe 11. & Tunnel Ayth., 4 N.Y.3d 3 5 , Cahill v. 37 (2004). DEFFNDANTS ESTABLISH A PRIMA FACIF DEFENSE THAT PLAINTTFF ASSUMED THE RISK$ I W F R E N T IN POLE DANCING. Defendants select the following deposition testimony to set forth a prima facie showing that plaintiff assumed the risk of injuries inherent in her pole dancing activities. Plaintiff testified at her deposition t h a t she voluntarily participated in t h e pole dancing class; in fact, on the day of her injury, she was at defendants gym facility specifically to participate in its pole dancing class. Her pole dancing experience consisted of attending approximately five previous pole dancing classes there, which included attempting the inversion maneuver on t w o or three p r i o r occasions. On the day of her injury, she specifically requested to perform the inversion maneuver. Plaintiff s instructor during the pole dancing class June 22, wee. 140 2 2009, Roland [* 4] Brown, testified at his deposition that plaintiff attempted the inversion after the class already had ended. Roberts v. Boy s and Girls Republic, Inc., 10 N.Y.3d 889 (2008); Marcano v. City of NPW York, 99 N.Y.2d 548, 549 (2002); Morqan v. State of New York, 90 N.Y.2d 471, 484, 488 (1997); Navarro v . Cit,v of New York, 87 A.D.3d 8 7 7 , 878 (1st Dep't 2011). 111. PLAINTIFF REBUTS DEFENDAPJTS SHOWING. Plaintiff nevertheless rebuts defendants' showing and defeats their motion for summary judgment, by raising factual issues material to her assumption of the risks in performing t h e inversion maneuver under the particular circumstances as she describes t h e m in her further deposition testimony. Contrary to Brown's testimony, plaintiff performed the inversion during the class, under his direct watch and supervision. She specifically asked him to spot her; in response, he stood n e a r her as if prepared to assist her while she performed the maneuver; yet he never intervened other than to insist that "you can do it," even while she called o u t for help. Aff. of Nicholas Warywoda (June 14, 2011) Ex. C, at 25. Plaintiff also relies on Brown's deposition testimony describing her as a beginner and an inexperienced pole dancer and confirming that Brown watched her perform the maneuver, but did not intervene other than with o r a l encouragement. Plaintiff thus raises various material factual issues bearing on the extent to which defendants may rely on her assumption of risk as a defense. wee. 14 0 3 First, as a beginner, she could [* 5] not f u l l y appreciate the risk of pole dancing. Second, she did not intend to perform or believe she was performing the inversion maneuver unassisted and therefore did not assume the risk of To t h e contrary, plaintiff performing the inversion unassisted. reasonably relied on Brown's direct and immediate supervision, so that h i s negligent failure to assist o r rescue her enhanced the risk of t h e activity. Morqan v. Stat e of New York, 90 N.Y.2d at 485; Mathis v. New York HeqAth C lub, 261 A.D.2d 345, 346 (1st 1999); Myers v. Friends of w Dep't e ndebowa Crew, Inc., 3 1 A.D.3d 853, 854, 856 (3d Dep't 2006); g e t r e t t i v. Jefferson Val. Racquet Club, 246 A.D.2d 583, 5 8 4 ( 2 d Dep't 1998). See Calouri v. COlJ nty Q f A.D.3d 456, 457-58 (2d Dep't 2007). $ uffglk, 43 Because plaintiff r a i s e s material f a c t u a l issues as to whether she assumed the risk of her injuries, her claims regarding defendants' negligent hiring, supervision, training, and retention of their instructor Brown and defendants' vicarious liability f o r his negligence survive defendants' motion for summary judgment. IV. CONCLUSION For the foregoing reasons, the court denies the motion for summary judgment by defendants AGT Crunch New York, LLC, and AGT Crunch Acquisition, LLC. constitutes the court's DATED: C.P.L.R. 5 3212(b). 61L E 0 .. July 13, 2012 NEWYORK COUNTY C E - ; L R8 wee. 140 This decision y BILLINGS, J.s.c.

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