Sugarman v Equinox Holdings, Inc.

[*1] Sugarman v Equinox Holdings, Inc. 2008 NY Slip Op 52530(U) [21 Misc 3d 1147(A)] Decided on December 15, 2008 Supreme Court, New York County Edmead, J. 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 December 15, 2008
Supreme Court, New York County

Stuart Sugarman, Plaintiff,

against

Equinox Holdings, Inc. d/b/a EQUINOX FITNESS CLUB, EQUINOX-85TH STREET INC., CHRISTOPHER CARTER, ABC CORPORATION (same name being fictitious and unknown) and JOHN DOE (said name being fictitious and unknown), Defendants.



108044/08

Carol R. Edmead, J.

Plaintiff Stuart Sugarman ("plaintiff") seeks damages for battery, emotional distress and negligence against Equinox Holdings, Inc., d/b/a Equinox Fitness Club, Equinox-85th Street Inc., (collectively, "defendants"), Christopher Carter ("Mr. Carter"), ABC Corporation (same name being fictitious and unknown) and John Doe (said name being fictitious and unknown), stemming from incidents that allegedly took place at an Equinox health club on August 15, 2007.

Defendants now move to dismiss plaintiff's complaint, pursuant to CPLR §3211(a)(7), on the ground that plaintiff's complaint fails to state a cause of action against them.

Factual Background [FN1]

On August 15, 2007, plaintiff was participating in an indoor cycling class ("spin class") at the Equinox Health Club located at 205 East 85th Street, New York, NY (the "health club"). Plaintiff was cheering and shouting during the class "as is customary and acceptable in these classes," when Mr. Carter became annoyed at plaintiff. Mr. Carter started yelling and cursing at plaintiff. At one point during the class, Mr. Carter got off his bicycle and complained to a class instructor about plaintiff. After the instructor declined to intervene, Mr. Carter continued to yell and curse at plaintiff. Plaintiff continued to cheer and shout. Mr. Carter eventually got off his bike again and "picked up the front of plaintiff's cycle with plaintiff upon the unit and pushed him into the wall of the classroom leaving a hole in the sheetrock." Plaintiff allegedly suffered several injuries to his back and neck, as well as "extreme humiliation and embarrassment."

Subsequently, plaintiff filed criminal charges against Mr. Carter. However, on June 2, [*2]2008, a jury acquitted Mr. Carter of all charges.[FN2] On June 9, 2008, plaintiff filed this action against Mr. Carter and defendants.

Plaintiff's Complaint

Plaintiff contends that Mr. Carter's conduct at the health club amounted to common law battery and negligence. Plaintiff also contends that defendants were negligent because they: (a) did not intercede to diffuse [sic] the argument between plaintiff and defendant Carter before it escalated in violence; (b) did not exercise proper care to remove defendant Carter from the instant spin class after defendant Carter exhibited violent behavior toward the plaintiff prior to his "Spin Rage"; (c) affirmatively prevented police and emergency response personnel from reaching the plaintiff who was injured at the time, and was otherwise negligent in the ownership, operation, supervision, management, control and/or maintenance of the premises; (d) negligently hired, trained, and retained its employees who were present prior to the "Spin Rage" of Carter and did not intercede in any fashion (plaintiff's complaint, paragraph 56).

Plaintiff argues that defendants' negligence was a direct and proximate cause of his injuries and that as a result of defendants' negligence, plaintiff suffered physical and emotional injury.

Defendants' Motion

Defendants contend that plaintiff failed to state a cause of action against defendants, because defendants owed no duty to plaintiff. Defendants argue that a premises owner has no duty to control the conduct of third persons, such as Mr. Carter. Defendants further ague that a premises owner cannot be held liable for a criminal act unless such an act is foreseeable. A "claim of an assault between two patrons during a spin class at a high-end health club catering to Wall Street professionals" should not be considered foreseeable as a matter of law, defendants argue. There is no history of prior criminal conduct at the health club, defendants contend; nor has there been any reason to know of the likelihood of criminal conduct. Plaintiff is asking the court to impose a new duty on business owners, "namely, the duty to intervene in a physical altercation between two patrons lawfully on the premises."

Defendants also deny that its employees acted negligently. Defendants characterize employees as "bystanders." There is no generalized duty for bystanders to intervene to prevent an altercation, defendants argue. Even if plaintiff could establish that defendants had a duty and defendants breached that duty, plaintiff is unable to show that defendants' breach was a proximate cause of plaintiff's injuries. "[B]reaking up a physical altercation is not a danger associated with conducting a spin' class at a health club," defendants argue.

Defendants contend that plaintiff concedes in his complaint that the incident was not foreseeable: plaintiff stated that he "has participated in hundreds of spin classes at the 85th Street Equinox without any incidents or complaints against him" (plaintiff's complaint, paragraph 21). Plaintiff also establishes that his cheering and shouting during the spin class was "customary and acceptable" (plaintiff's complaint, paragraph 25). Therefore, even plaintiff did not anticipate a physical attack after engaging in customary and acceptable behavior, defendants contend. Yet, [*3]plaintiff argues that defendants should have foreseen such an attack.

Defendants also contend that plaintiff cannot state a cause of action for negligent hiring, training, and retention when there was no underlying negligence, defendants argue. Defendants had no notice of any "relevant tortious propensities of wrongdoing employee." Without any underlying duty on behalf of the individual Equinox employees to respond to the sudden and unforeseeable attack on plaintiff, there can be no vicarious duty upon Equinox Defendants. Further, plaintiff's contentions that defendants engaged in negligent hiring and training are too conclusory to survive.

Further, plaintiff cannot state a cause of action for failure to summon or attempted interference with emergency personnel, defendants contend. The complaint does not establish that defendants owed plaintiff a duty, either under statute or common law, to summon emergency personnel onto the premises. Furthermore, plaintiff does not allege that his injuries were in any way exacerbated by defendants' alleged attempts to interfere with emergency personnel, or that he suffered any new injuries as a result of the alleged conduct.

Defendants also deny that they failed to show concern for plaintiff's health after the incident, or that they interfered with police or emergency responders who tried to assist plaintiff. Defendants also point out that under New York law there is no cause of action for failing to call emergency personnel.

Plaintiff's Opposition

Plaintiff contends that his complaint should be judged on its face, and that he does not need to provide any affidavits or proof at this juncture. Plaintiff also contends that defendants' motion to dismiss should be denied because the alleged attack on plaintiff was both foreseeable and preventable. The escalation of words between plaintiff and Mr. Carter put defendants on notice: "Any reasonable, prudent person in the room at that time knew or should have known that the assault was about to take place," plaintiff argues. Plaintiff also reasserts his contention that defendants had a duty to prevent the alleged attack on him. "The duty of a possessor of property may include . . . protecting individuals against injury caused by the conduct of third persons on the premises," plaintiff argues. Mr. Carter's conduct was foreseeable and preventable and "discovery in this case will reveal that defendants had a duty to prevent the alleged attack on plaintiff.

Defendants' Reply

In reply, defendants reassert that plaintiff has not alleged any legally cognizable duty owed by defendants, and point out that the cases to which plaintiff cites involved inadequate security, which is not at issue here. Defendants also contend that plaintiff's complaint does not indicate that the alleged assault was foreseeable; certain paragraphs are contained in the cause of action directed toward Mr. Carter and certain paragraphs directed at the defendants actually demonstrate that the defendants never undertook to guarantee plaintiff's safety in the midst of an altercation with another patron, or to otherwise act as plaintiff's bodyguard. The instructors merely "kept to their assigned roles," defendants argue.

Defendants also contend that their motion is not premature, as plaintiff implies. Defendants argue that discovery is not necessary when the facts as pleaded do not support a claim. Defendants point out that plaintiff's reply does not contest defendants' contention that defendants had no duty to call emergency responders. Plaintiff also fails to establish that [*4]defendants' alleged interference with emergency personnel exacerbated his injuries. Therefore, plaintiff has conceded that the complaint fails to state a cause of action arising out of the defendants' conduct with respect to emergency personnel, and that cause of action should be dismissed.

Analysis

Failure to State a Cause of Action

In determining a motion to dismiss, the court's role is ordinarily limited to determining whether the complaint states a cause of action (Frank v DaimlerChrysler Corp., 292 AD2d 118, 741 NYS2d 9 [1st Dept 2002]). The standard on a motion to dismiss a pleading for failure to state a cause of action is not whether the party has artfully drafted the pleading, but whether deeming the pleading to allege whatever can be reasonably implied from its statements, a cause of action can be sustained (see Stendig, Inc. v Thom Rock Realty Co., 163 AD2d 46 [1st Dept 1990]; Leviton Manufacturing Co., Inc. v Blumberg, 242 AD2d 205 [1st Dept 1997] [on a motion for dismissal for failure to state a cause of action, the court must accept factual allegations as true]).

When considering a motion to dismiss for failure to state a cause of action, the pleadings must be liberally construed (see CPLR §3026). On a motion to dismiss made pursuant to CPLR §3211, the court must "accept the facts as alleged in the complaint as true, accord plaintiffs the benefit of every possible favorable inference, and determine only whether the facts as alleged fit into any cognizable legal theory" (Nonnon v City of New York, 9 NY3d 825 [2007]; Leon v Martinez, 84 NY2d 83, 87-88 [1994]).

Negligence

To establish a negligence cause of action, a plaintiff must demonstrate (1) a duty of care owed to the plaintiff; (2) a breach of that duty; (3) that the breach is a proximate cause of plaintiff's injury or damages; and (4) that the plaintiff suffered a legally cognizable injury or damages (see Akins v Glens Falls City School District, 53 NY2d 325, 333 [1981]). The threshold issue here is whether defendants owed any duty to plaintiff to prevent Mr. Carter from allegedly assaulting plaintiff.

In examining plaintiff's complaint on its face, giving plaintiff the benefit of every possible favorable inference, and determining only whether the facts as alleged fit into any cognizable legal theory,[FN3] the Court finds that plaintiff has failed to establish a negligence cause of action against defendants.

First, plaintiff contends that defendants were negligent because they "did not intercede to diffuse [sic] the argument between plaintiff and defendant Carter before it escalated in violence" and they "did not exercise proper care to remove defendant Carter from the instant spin class after defendant Carter exhibited violent behavior toward the plaintiff prior to his Spin Rage'" (paragraph 56). It is well settled that a landowner is liable for the conduct of a third party only if the third party's conduct is foreseeable. While a landlord . . . has a common-law duty to take minimal precautions to protect tenants and users of the facility from foreseeable harm, including the criminal conduct of third parties (see, Burgos v. Aqueduct Realty Corp., 92 NY2d 544, 548, 684 NYS2d 139, 706 NE2d 1163), this duty arises only when such party knows or has reason to know that [*5]there is a likelihood that third persons may endanger the safety of those lawfully on the premises [citations omitted], as where the landlord [or permittee] is aware of prior criminal activity on the premises.' . . . [T]he possessor of land, be he landowner or leaseholder, is not an insurer of the safety of those who use his premises'"

(Florman v City of New York, 293 AD2d 120, 124 [1st Dept 2002])[FN4].

In the case of criminal acts by third parties, such as assault, the defendant landlord must have notice of the third party's criminal tendencies (Buckeridge v Broadie, 5 AD3d 298, 300 [1st Dept 2004] ["This record is devoid of any proof of prior criminal incidents at defendant's residence or at other neighborhood residences that would have placed defendant on notice that a robbery of this type would have been likely to happen. The only criminal activities of which defendant was aware were several robberies in the grocery store located next door. These incidents were insufficient to place defendant on notice that his home was vulnerable to this type of criminal activity"]). The court in Buckeridge also points out that such notice can be established "only by proof of a prior pattern of criminal behavior" (id. at 299). For example, in the First Department case of Piazza v Regeis Care Center, L.L.C., the defendant nursing home was found not liable for injuries the plaintiff suffered from her brother during a visit to their mother at the nursing home (47 AD3d 551, 553 [1st Dept 2008]). The court held that the nursing home had no notice of the brother's violent tendencies, even though the plaintiff had sent the nursing home a letter informing the nursing home that her brother had problems. "Although plaintiff's brother may have had a history of drug abuse and verbal intimidation, there was no evidence that he had a history of physical violence toward plaintiff or their mother prior to the subject incident. Accordingly, defendant had no reason to anticipate the assault or duty to take steps to prevent contact between plaintiff and her brother" (id. at 553) (emphasis added). The Piazza court noted that the nursing home had alleged that "at no time during the subject 30-minute visit did plaintiff ever express that she was uncomfortable with her brother's presence. Furthermore, defendant's Director of Building Services stated at his deposition that there were no complaints in the six-month period before the incident by visitors regarding other visitors" (id. at 554-555).

Similarly, in the case at bar, plaintiff has failed to establish a pattern of criminal behavior by Mr. Carter or any other patrons at the health club that should have put defendants on notice. Plaintiff's complaint indicates that he had attended "hundreds of spin classes" at the health club with no problems (paragraph 21). Further, on the day of the alleged incident, plaintiff at no time indicated that he feared for his safety or was even intimidated by Mr. Carter's behavior. Plaintiff never complained to the class instructor about Mr. Carter's conduct. To the contrary, Mr. Carter is the one who approached the instructor to complain about plaintiff. Even after plaintiff witnessed Mr. Carter complaining to the instructor, plaintiff showed no sign of being intimidated by Mr. Carter or fearing for his safety. Instead, plaintiff testified that he kept on cheering and shouting, while Mr. Carter kept on cursing (paragraph 31). Plaintiff's own testimony fails to [*6]establish that even plaintiff foresaw the alleged assault by Mr. Carter.

Further, caselaw indicates that a third party's cursing or verbal tirades are not sufficient to put a premises owner on notice of a possible physical assault; there has to be some evidence of a pattern of physical violence (Piazza at 553). Other cases note the distinction. In Millan v AMF Bowling Centers, Inc. (38 AD3d 860, 861, 2007 NY Slip Op 02723, *2 [2007]), the plaintiff sued a bowling alley for negligence after the plaintiff was assaulted on the premises by another patron. The plaintiff argued that the defendant bowling alley breached a duty to protect the plaintiff because the assault was foreseeable: Prior to the assault, the assailant had laughed at the plaintiff. The court found the defendant bowling alley not liable for negligence: The defendant demonstrated its prima facie entitlement to summary judgment based on, inter alia, the plaintiff's deposition testimony that, before the assault, his assailant had done nothing to him other than laugh at him, and the deposition testimony of the defendant's employee that before the assault, the assailant had not caused any problems and that the assault happened suddenly and without warning . . . The evidence relied upon by the plaintiff was in large part speculative and failed to demonstrate that the defendant's employees could reasonably have anticipated or prevented the assault of the plaintiff" (Millan at 861).

In Shank v Riker Restaurants Associates, Inc. (28 Misc 2d 835 [1961]), a restaurant was found liable for the injuries sustained by the plaintiff after the plaintiff was attacked by a third party in the restaurant. The court noted that before the assault, for 20 minutes, the third party created a disturbance in the restaurant, "berating customers in a vile manner." The third party even "drop-kicked" a glass "against the kitchen door causing water and pieces of glass to spray over a wide area" (id. at 836). The manager of the restaurant called the police, but then canceled the call after the third party apologized and offered to pay for the glass. Later, the third party was joined by two others and started physically attacking customers, including the plaintiff. In holding that the third party's violent acts were foreseeable, the court stated: "While it might be said that the manager had no duty to eject him solely because of his vile and abusive language, when he drop kicked' the glass of water it became abundantly clear that the hoodlum' constituted a source of physical danger to defendant's patrons"(id. at 837) (emphasis added). These cases indicate that New York courts look for evidence of actual physical violence that would put a premises owner on notice.

Here, plaintiff contends that defendants were aware that Mr. Carter had exhibited "violent behavior" toward plaintiff before the alleged assault. However, plaintiff does not describe any violent behavior. Plaintiff contends that "while plaintiff was cheering and shouting during the spin class, defendant Carter became annoyed and agitated and began yelling at plaintiff using profane language" (Complaint, paragraph 26) (emphasis added). Plaintiff also contends that after 10 minutes, Mr. Carter's "agitation and hostility escalated" (id. at paragraph 27). However, the escalation was manifest only in Mr. Carter's getting off his bike and not approaching plaintiff, which could have been evidence of threatening behavior, but approaching the instructor to ask the instructor to silence plaintiff (id. at paragraph 28). Plaintiff contends Mr. Carter "returned to his bike enraged and continued his verbal assault on plaintiff" (id. at 30, emphasis added). Plaintiff goes on to contend that Mr. Carter "became further enraged when plaintiff refused to [*7]stop cheering and shouting" (id. at paragraph 31). Nowhere in plaintiff's complaint does he establish that prior to the alleged assault, Mr. Carter acted violently or threatened to harm plaintiff physically. In fact, plaintiff maintains in his complaint that "prior to the events that arose in the instance [sic] spin class, plaintiff had never met or spoken to defendant Carter other than having seen defendant Carter on other occasions at the 85th Street Club" (id. at paragraph 24).

Caselaw indicates that New York courts have considered the heated exchange of words between patrons sufficient to put an owner of the premises on notice. For example, in a case decided just this year, the court denied a restaurant's motion for summary judgment on a negligence complaint, reserving for a jury the question of whether the defendant restaurant was on notice before the plaintiff patron was attacked by another patron. The court notes that "heated words" were exchanged before the incident (Barshay v 273 Brighton Beach Ave. Restaurant, Inc., 20 Misc 3d 1116(A), NY Slip Op 51364(U) [2008] [table; text at 2008 WL 2677535 (NY Sup 2008)]). However, the exchange of heated words alone was not dispositive of notice. Construing the facts in the instant case in the light most favorable to the plaintiffs, an issue of fact exists as to whether the incident was foreseeable or unexpected, given Barshay's claim that [the defendant restaurant] knew or should have known that patrons were exchanging heated words and fighting in the restaurant approximately 20 minutes prior to the alleged assault and that an employee was aware of the tension between these patrons" (id. at 4, citing Ash v Fern, 295 AD2d 869, 870 [3d Dept 2002]) (emphasis added).

While the court noted the exchange of heated words, it also notes that prior fighting should have put the premises owner on notice.

In Ash, the case cited by the Barshay court, the court also denied the defendant restaurant's motion for summary judgment on a negligence complaint. The court pointed out that the exchange of heated words between two groups of patrons raised an issue of fact as to whether the defendant restaurant on notice of a possible assault. The plaintiff, a patron, was struck and injured by a glass canister thrown in a fight between the two groups. "[T]he confrontation between the two groups of patrons, which included yelling, cursing and vulgarity, had escalated over a period of 10 to 15 minutes despite repeated warnings, and . . . defendant's employees took no further action to control this behavior until it erupted into a full-scale brawl and the police were called"(Ash at 870) (emphasis added).

Barshay and Ash can be distinguished from the case at bar. Although, plaintiff here characterizes the events leading up the alleged assault as "a dispute" (Complaint, paragraph 29) and "an argument" (id., paragraph 56), plaintiff offers no evidence that heated words were exchanged between plaintiff and Mr. Carter, as they were in Barshay. According to plaintiff's complaint, plaintiff never said a word to Mr. Carter, or even acknowledged Mr. Carter during the entire class. Instead, plaintiff just continued "cheering and shouting" during the class (id., paragraph 31). The court declines to characterize plaintiff's and Mr. Carter's behavior as either a dispute or an argument.

In addition, the circumstances surrounding the assault of the patron in Ash are inapposite to the circumstances here. In Ash, the plaintiff offered evidence that the employees found reason to get involved before the assault. The employees repeatedly warned the patrons before the [*8]assault occurred. Citing D'Amico v Christie (71 NY2d 76, 85 [1987]), the Ash court pointed out that premises owners "have a duty to control the conduct of third persons on their premises when they have the opportunity to control such persons and are reasonably aware of the need for such control" (Ash at 870) (emphasis added). Here, plaintiff has not demonstrated that defendants were reasonably aware of the need for such control.

Plaintiff has failed to establish that defendant had reason to know that a patron would get off a spin bike and assault plaintiff or any other patron in the spin class. Plaintiff has failed to establish that there was a pattern of criminal or violent behavior by Mr. Carter or other patrons in defendants' spin classes or on defendants' premises that should have put defendants on notice of the likelihood of an assault on plaintiff. Plaintiff has failed to establish that defendants should have foreseen and expected any violent conduct by Mr. Carter. Here, as in Piazza, the alleged assault by Mr. Carter was "extraordinary and not foreseeable or preventable in the normal course of events" (Piazza at 554, citing Maheshwari v City of New York, 2 NY3d 288 [2004]). Therefore, plaintiff has failed to establish that defendants owed plaintiff a duty to defuse any argument or dispute between plaintiff and Mr. Carter, or to remove Mr. Carter from the class prior to the alleged assault. Where "proof of any essential element [of negligence] falls short, the case should go no further" (Basso v Miller, 40 NY2d 233, 242 [1976]). Accordingly, defendants' motion to dismiss plaintiff's negligence claim with regard defendants' failed to defuse any argument or dispute between plaintiff and Mr. Carter, or to remove Mr. Carter from the class is granted.

Second, plaintiff contends that defendants were negligent because they "affirmatively prevented police and emergency response personnel from reaching the plaintiff who was injured at the time" and were "otherwise negligent in the ownership, operation, supervision, management, control and/or maintenance of the premises" (Complaint, paragraph 56). Plaintiff contends that defendants "refused to call the police or an ambulance despite the fact that plaintiff specifically asked for emergency response personnel to be called leaving plaintiff to call 9-1-1 himself after plaintiff was injured" (id. at paragraph 53). Plaintiff further contends that defendants "then tried to prevent police and emergency responders from entering the facility claiming the matter was being handled in house'" (id. at paragraph 54).

Defendants do not deny refusing to call the police or emergency personnel upon plaintiff's request. However, the threshold issue is whether defendants owed plaintiff a duty to call the police or emergency personnel. In general, there is no legal duty to aid a person in peril (Plutner v Silver Associates, 186 Misc 1025, 1027 [1946] ["Concededly, there is no legal duty to offer relief or assistance to one who is sick or injured. It is true that there may be a strong moral and humanitarian obligation to furnish such aid and assistance under ordinary circumstances, but from time immemorial our courts have held that there is no legal responsibility so to do"]).[FN5] An exception to this general rule is when a special relationship exists between the parties, such as a motor vehicle operator to passengers and persons on the road; a school district to its students; a prison to its inmates; or a food establishment to its customers, or common carrier and a passenger [*9](see e.g., Middleton v Whitridge, 213 NY 499 [1915]).[FN6] The landlord-tenant relationship does not fall under this exception. For example, in Jardine v Village of Rockville Centre (39 Misc 2d 334, 335 [1963]), the court held that the landlord owed no duty to a tenant injured in a fire to call firefighters to the premises to assist the tenant. The plaintiff was injured in a fire and in her cause of action against the defendant Eckhoff, as owner of the premises, she sets forth that his agent, who was then present, knew she was in the building, failed to rescue her, failed to timely notify the Fire Department of her presence and failed in his duty to take necessary steps for her safety. Plaintiff nowhere asserts that said defendant was responsible for the fire. She does assert that the premises was a fire hazard but, as this is a purely conclusory allegation, it is insufficient in law. Nor is it alleged that this defendant violated any ordinance or code which plaintiff is entitled to invoke and which would constitute the proximate cause of the fire. (Winbush v. City of Mt. Vernon, 2 A D 2d 893. It certainly cannot be said that an owner owes the duty of rescue, since there is no common law obligation for a landlord to be benevolent, heroic or to insure the safety of his tenant. And, assuming arguendo that said defendant owed the duty of notifying the firemen of plaintiff's presence, there is no assertion that such failure of notification was the proximate cause of or would have prevented injury (id. at 334-335).

Here, plaintiff was not a tenant, but a patron of defendants' health club. But a premises owner's duties to its patrons are limited, as well. For example, New York law regulating public eating establishments makes clear that a restaurant owner or employee has no duty to assist a choking victim.[FN7]

In Plutner v Silver Associates, Inc., a case more analogous to the case at bar, the court held that the defendant bathhouse had no legal duty to offer relief or assistance to an patron who fell and struck his head while descending a stairway on the premises (186 Misc 1025, 1028 [1946] [The bathhouse employee told the plaintiff to wait while the employee attended another patron, but the plaintiff instead attempted to climb the stairs himself and subsequently passed out (id. at 1026)]). The court went on to distinguish the duties of a premises owner and those of a common carrier: The plaintiff, however, attempts to spell out liability in this case under the theory that the relationship of the parties or the very nature of the surroundings emphasizes a moral obligation as a result of which a legal responsibility comes about and renders the defendant liable for damages for the failure to furnish such aid and succor. The cases cited in support of this contention are "public carrier" cases [such as Middleton v. Whitridge] . . . . In this case the only similarity between the bathhouse and a public carrier is that both operate a business which is held out to the general public but the duties and responsibilities vary insofar as the legal obligations of each of these different enterprises [*10]are concerned" (id. at 1028) (citations omitted).

The Putnam court goes on to cite a case involving a Turkish bath in which the court held that the defendant owner was not liable for "its failure to supply plaintiff any medical attention after the accident" (id., citing Warren v Werther, 182 AD 783, 787 [1918]).

Here, even if the Court assumed that defendants breached such a duty, plaintiff has failed to establish that defendants' failure to provide assistance by calling the police or emergency responders was the proximate cause of his injuries (Plutner at 1027). Plaintiff does not even allege that plaintiff's injuries were exacerbated by defendants' failure to call the police or an ambulance (Warren at 787 ["But there is no proof in the case that the injuries were in any way aggravated by the tardiness of the medical attendance" (id.)]. Accordingly, plaintiff's claim that defendants were negligent for refusing to call the police or emergency responders also must fail.

Defendants also deny preventing the police and emergency responders from reaching plaintiff. However, once again, the threshold issue is whether defendants owed plaintiff a duty to allow police and emergency response personnel to reach plaintiff. And, once again, New York courts do not recognize any legal duty for a premises owner to help the police or emergency personnel assist an injured patron. New York has criminal laws against obstructing public servants such as police officers from performing official functions (Penal Law §195.05) and obstructing emergency medical services (Penal Law §195.16). And, under certain circumstances, the violation of a criminal statute can give rise to civil liability. "The duty imposed by statute is absolute and proof of disregard of a duty created by statute for the protection of a special class establishes, it has been said, negligence as a matter of law" (Schmidt v Merchants Despatch Transp. Co., 270 NY 287, 304 [1936]).

However, the success of such an action depends on whether the statute was designed to protect a class of persons of which plaintiff is a member.[FN8] "Where a statutory duty is imposed upon one for the direct benefit or protection of another, and the latter is damaged because this duty is not performed, a cause of action arises in his favor based upon the statute, but no one not included in the class so directly to be benefitted may complain because the statute is not complied with" (Di Caprio v New York Cent R. Co., 231 NY 94, 97 [1921]).

Here, even if plaintiff established that defendants violated Penal Laws §§195.05 and 195.16, plaintiff has failed to establish that he is among the class of persons Penal Laws §§195.05 and 195.16 were designed to benefit, giving rise to a cause of action in plaintiff's favor. Penal law §195.05 makes it a class A misdemeanor to interfere with the "administration of law or other governmental function or prevents or attempts to prevent a public servant from performing an official function" (emphasis added). At the time of the alleged assault at the health club, plaintiff here was not involved in the administration of law, nor is plaintiff a public servant. Penal Law §195.16 makes it a class A misdemeanor to interfere with the "efforts of any service, technician, personnel, system or unit specified in section three thousand one of the public health law in the performance of their duties." Plaintiff here has not established that he is a public [*11]health technician or personnel. Therefore, plaintiff has failed to establish that defendants by allegedly interfering with police and emergency responders, violated a duty to him.

Even if the defendants breached a duty to assist plaintiff by interfering with the police or emergency personnel who responded to plaintiff's 911 call, plaintiff failed to establish that defendants' failure to provide assistance by interfering the police or emergency personnel was the proximate cause of his injuries (Plutner at 1027). Accordingly, defendants' motion to dismiss plaintiff's negligence claim with regard to defendants' alleged interference with police and emergency responders is granted.

Third, plaintiff contends defendants "negligently hired, trained, and retained its employees who were present prior to the Spin Rage' of Carter and did not intercede in any fashion" (defendant's Exh. A, plaintiff's complaint, paragraph 56). According to the First Department, "recovery on a negligent hiring and retention theory requires a showing that the employer was on notice of the relevant tortious propensities of the wrongdoing employee" (Gomez v City of New York, 304 AD2d 374, 374-375 [1st Dept 2003]). Here, plaintiff has failed to establish that defendants' employees engaged in any wrongdoing. Further, plaintiff failed to provide any evidence that defendants had notice of any relevant tortious propensities of any of its employees. Accordingly, defendants' motion to dismiss plaintiff's negligence claim with regard to defendants' alleged hiring, training and retention of its employees is granted.

Conclusion

Based on the foregoing, it is hereby

ORDERED that the motion by defendants Equinox Holdings, Inc., d/b/a Equinox Fitness Club and Equinox-85th Street Inc. for an order, pursuant to CPLR 3211(a)(7) dismissing plaintiff's complaint is granted, and the complaint is dismissed as against said defendants; and it is further

ORDERED that the remaining parties appear for a preliminary conference on February 17, 2009, 2:15 p.m.; and it is further

ORDERED that the Clerk may enter judgment accordingly; and it is further

ORDERED that plaintiff serve a copy of this order with notice of entry upon all parties within 20 days of entry.

That constitutes the decision and order of the Court.

That constitutes the decision and order of the Court.

Dated: December 15, 2008____________________________________

Hon. Carol R. Edmead, J.S.C. Footnotes

Footnote 1: These facts are taken from plaintiff's complaint (defendants' motion, Exhibit A).

Footnote 2:The trial garnered much media attention, with one area newspaper touting such headlines as "Win for Cycle of Violence" (see appendix to defendant's motion).

Footnote 3: See Nonnon v City of New York, 9 NY3d 825 [2007]; Leon v Martinez, 84 NY2d 83, 87-88 [1994].

Footnote 4: See also Nallan v Helmsley-Spear, Inc. (50 NY2d 507, 519, 429 NYS2d 606, 613 [1980]): "[E]ven where there is an extensive history of criminal conduct on the premises, the possessor cannot be held to a duty to take protective measures unless it is shown that he either knows or has reason to know from past experience that there is a likelihood of conduct on the part of third persons . . . which is likely to endanger the safety of the visitor' (Restatement, Torts 2d, s 344, Comment f ). Only if such conditions are met may the possessor of land be obliged to take precautions . . . and to provide a reasonably sufficient number of servants to afford a reasonable protection' (id.)."

Footnote 5:When a person voluntarily acts to assist a person, the negligent performance of that assistance could lead to liability (see Nallan v Helmsley-Spear, Inc., 50 NY2d 507, 521-522, 407 NE2d 451, 45, 429 NYS2d 606, 615 [1980]). Here, defendants assumed no duty to assist plaintiff.

Footnote 6:"If a passenger becomes sick and unable to care for himself during his journey, it seems plain that the carrier owes him an added duty resulting from the change of situation. That duty springs from the contract to carry safely" (Middleton v Whitridge, 213 NY 499, 510, 108 NE 192, 197 [1915]).

Footnote 7: "No duty to act. Nothing contained in this section shall impose any duty or obligation on any proprietor, employee or other person to remove, assist in removing, or attempt to remove food from the throat of the victim of a choking emergency" (Public Health Law §1352-b.)

Footnote 8: "[U]nder New York law, a defendant is liable for negligence per se if the plaintiff establishes (1) that he or she is among the class of people for whose particular benefit a statute has been enacted; (2) that a private right of action would promote the legislative purpose behind the statute; and (3) that creation of the right would be consistent with the overall legislative scheme" (Fagan v AmerisourceBergen Corp., 356 F Supp 2d 198, 214 [2004]).