Ruiz v Young Men's Christian Assn. of Greater N.Y.

[*1] Ruiz v Young Men's Christian Assn. of Greater N.Y. 2010 NY Slip Op 50209(U) [26 Misc 3d 1222(A)] Decided on January 5, 2010 Supreme Court, New York County Gische, 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 January 5, 2010
Supreme Court, New York County

John Ruiz, Plaintiff (s),

against

Young Men's Christian Association of Greater New York, Defendant(s).



106329-2005



ATTORNEY FOR THE PLAINTIFF:

ERIC H. GREEN

295 MADISON AVENUE

NEW YORK, NEW YORK 10017

ATTORNEY FOR THE DEFENDANT:

GORDON & SILBER

355 LEXINGTON AVENUE-7TH FLOOR

NEW YORK, NEW YORK 10017

Judith J. Gische, J.

This is a personal injury action brought by plaintiff John Ruiz ( Ruiz") against the Young Men's Christian Association of Greater New York ( YMCA"), the owner/operator of the gymnasium where Ruiz was playing basketball when he was injured. Issue has been joined and YMCA has filed the note of issue. Presently before the court is YMCA's motion for summary judgment dismissing the complaint which Ruiz opposes. Since the motion is timely, it can be decided on the merits (CPLR § 3212; Brill v. City of New York, 2 NY3d 648 [2004]). The court's decision is as follows:

Arguments

On March 20, 2003, while playing basketball at the YMCA, Ruiz slipped and fell, rupturing his Achilles tendon and allegedly suffering other injuries, including a limited range of motion, and a traumatic activation of arthritis in his left hip. Ruiz alleges that the YMCA negligently maintained the premises because its maintenance person did not sweep the gym, but only used a dry dust mop to push around whatever debris was on the gym floors. The debris" alleged are several small white, round beads the size of a dime. According to Ruiz, the beads were worn by the dancers who had just exited the gym after their class ended and Ruiz started to play on the court.

Defendants deposed Ruiz and his teenage son, Jonathan. Ruiz testified at his EBT that when he arrived at the gym he saw a group of 20 dancers wearing African gowns. The dancers [*2]had beads in their hair and on their feet. The dancers were jumping around and moving about the gymnasium. When the class ended, a maintenance worker told Ruiz he was going to sweep up. The man then proceeded to use something Ruiz described as a three to four foot wide dust or dry mop to clean the floor. When the man finished, he told Ruiz and his son they could use the gym. The gym was well lit and Ruiz did not notice any debris on the floor. After playing awhile, Ruiz took a shot and stepped forward. He felt his leg slide, he fell and heard a pop" which turned out to be his Achilles tendon. It was then that Ruiz observed two or three white beads on the ground the diameter of a dime. When asked whether Ruiz stepped on those beads, he responded I believe so." He also testified that the he did not see the beads fall off the dancers but assumed that is where the beads came from. Ruiz did not complain to anyone about beads being on the gymnasium floor before he started to play or during the game.

Jonathan (Ruiz's son) testified that no one (including his father) complained about beads or any other debris being on the gymnasium floor before his father fell. After Ruiz fell, Jonathan observed a bead near his father's foot and he assumed that is what his father fell on. Both Ruiz and his son provide supplemental sworn affidavits. In his affidavit, Ruiz clarifies that after he fell, he saw three beads near his left foot and [t] hese were the objects I had stepped on just prior to losing my footing..."

David Davis, YMCA's senior program director was also deposed and testified that the gymnasium floor was swept daily in the morning and mopped twice a week. He could not recall how many people were on the cleaning staff. He stated that there were no complaints made about beads on the gymnasium floor prior to Ruiz's accident. He also testified that the dance classes did not involve beads or beaded clothing. One of the dance classes was open to the public, not just members. YMCA's security guard, David Hines was also deposed; he testified he did not observe any dancers wearing beaded skirts on the day of the accident.

YMCA argues that it did not have actual notice of a dangerous condition because there were no complaints of beads on the gymnasium floor. The YMCA argues further that the beads were so small they were not visible nor could they have been easily detected unless pointed them out. They argue the plaintiff himself did not notice the beads after he fell. YMCA denies it had constructive notice of a dangerous condition or that it existed for a sufficient length of time prior to plaintiff's accident to permit the defendant's employees to discover and remedy the condition. Defendant points out the players were only on the court a few minutes when the accident happened and the beads could easily have been kicked onto the gymnasium floor from an area outside the gym. According to the YMCA, the gym is swept each day in the morning and, therefore, no debris accumulates from day to day.

Defendant also raises the defense of assumption of risk. YMCA argues that Ruiz was a regular basketball player and based upon his knowledge of the game and past participation in the sport, is held to have appreciated the risk of injury.

In opposition to YMCA's motion, Ruiz denies the assumption of risk doctrine has any application because scattered beads on a gymnasium floor are not fixed permanent objects, but an unobservable and transient condition. That YMCA undertook to clean, but then did so negligently, giving Ruiz the false impression that the floor was safe to play on.

According to Ruiz, who is familiar with the YMCA facilities, the dancers usually use a different room that is a mixed used room, but has no hoops in it like the gym does. When he [*3]arrived the dancers were still dancing but about to finish. A maintenance man (possibly Fred" who no longer works for the YMC) showed up and undertook to sweep the gym after the dance class ended, but before Ruiz and his son were allowed to play. The man used a big dust mop on the floor which was 3-4 feet long and went up and down the court. He was done in less than five minutes and while Ruiz was in mid-conversation. Ruiz did not observe the man use a dustpan to pick anything up off the floor. When the man was done, he told Ruiz okay — you guys can play." Ruiz contends that the mere fact that someone came to sweep up after the dance class which ended at about 6pm raises issues of fact whether the defendant knew or had reason to believe that the dancers who were wearing beads in their hair, hands, and feet might have dropped some of those beads onto the floor.

Ruiz argues that the unresolved issue of reasonable care must be tried because the parties disagree whether the maintenance man's actions were reasonable in light of the attendant facts.

Summary Judgment - the burden of proof

A movant seeking summary judgment in its favor 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." (Winegrad v. New York Univ. Med. Ctr., 64 NY2d 851, 853 [1985]). The evidentiary proof tendered, however, must be in admissible form (Friends of Animals v. Assoc. Fur Manufacturers, 46 NY2d 1065 [1979]). Once met, this burden shifts to the opposing party who must then demonstrate the existence of a triable issue of fact (Alvarez v. Prospect Hosp., 68 NY2d 320, 324 [1986]); Zuckerman v. City of New York, 49 NY2d 557 [1980]).

Discussion

Primary Assumption of Risk

The doctrine of primary assumption of risk provides that a voluntary participant in a sporting event assumes the known risks normally associated with that sport (see Morgan v. State of New York, 90 NY2d 471, 484 [1997]). By electing to participate, the plaintiff is deemed to have consented to those injury-causing events which are known, apparent or reasonably foreseeable consequences of the participation" (Turcotte v. Fell, 68 NY2d 432, 439 [1986]). This includes those risks associated with the construction of the playing surface and any open and obvious condition on it (Joseph v. New York Racing Ass'n, Inc., 28 AD3d 105 [2nd Dept. 2006]).

A participant in a recreational activity will not, however, be deemed to have assumed unreasonably increased risks (Morgan v. State, 90 NY2d 471 [1997] [player tripped on torn net]). Here, defendant has failed to prove that Ruiz assumed the risk of playing basketball on an indoor surface which may have been littered with round beads, or that the alleged condition is apparent or a reasonably foreseeable consequence of participating in this sport. Therefore, the primary assumption of risk defense is unavailable to the defendant, and does not entitle YMCA to summary judgment in its favor.

Negligence

It is black letter law that a landowner or possessor has a duty to maintain its property in a reasonably safe condition under existing circumstances, which includes the likelihood of injury to a third party (Perez v. Bronx Park South, 285 AD2d 402 [1st Dept 2001]). This common law duty is tempered by a requirement that a plaintiff seeking recovery must establish that the [*4]possessor of land had actual or constructive notice of the hazardous condition which precipitated the injury (Pappalardo v. Health & Racquet Club, 279 AD2d 134 [1st Dept. 2000]). To constitute constructive notice, a defect must be visible and apparent, and it must have existed for a sufficient length of time prior to the accident for the owner to have discovered the defect and remedied it. Pappalardo, supra.

Since the YMCA has possession of the YMCA, it has the burden of proving that it did not create the dangerous condition alleged nor did it have a sufficient opportunity, within the exercise of reasonable care, to remedy the situation (see Gordon v. American Mus. of Nat. Hist., 67 NY2d 836 [1986]; Lewis v. Metropolitan Transp. Auth., 99 AD2d 246 [1984] aff'd 64 NY2d 670 [1984]; see, Mercer v. City of New York, 223 AD2d 688, 689 [1996] aff'd 88 NY2d 955 [1996]). For reasons made clear below, the court finds that the YMCA has not established that lack of notice. In any event, even if it did not have notice of a dangerous condition, there are disputed triable issues of material fact whether YMCA's maintenance person exercised reasonable care in how he cleaned the area used as a basketball court.

David Davis testified that YMCA has someone routinely sweep the gym each morning and the floors are mopped twice a week. Ruiz claims, however, that a maintenance person (who was not deposed and whose last name is unknown) came to the gym right after the dance class ended to sweep the gym. Given Hines' EBT testimony about the schedule for sweeping the gym (each morning), Fred's" visit to the gym was unscheduled. This raises a factual dispute whether the maintenance person expected to find debris (like beads) on the gym floor based on his prior experience with what that particular dance class entailed or whether a sweep earlier in the day had not occurred. Hines offered no explanation for the change in schedule.

Although YMCA correctly argues that it is not an insurer of plaintiff's safety while at the premises, a property owner or possessor may be liable if it has failed to properly maintain the premises for its anticipated use (Schmerz v. Salon, 26 AD2d 691 aff'd 19 NY2d 846 [1966]). Here, the gymnasium was used as a basketball court and the presence of small beads posed a danger if they were not properly cleared away. Ruiz has triable issues of fact whether YMCA used reasonable care to remove all hazards from the gymnasium floor. According to Ruiz and his son, Fred" used a dust mop and Ruiz did not notice whether he actually swept anything up. A jury could find that a dust mop was not a reasonable way to prepare the gym for its next use after the dance class.

As the moving party, YMCA has a greater burden to produce evidentiary facts than its adversary (Friends of Animals v. Assoc. Fur Manufacturers, 46 NY2d 1065 [1979]). By their very nature, negligence cases do not lend themselves to summary judgment because the issue of whether the defendant (or plaintiff) acted reasonably under the circumstances is rarely an issue that can be decided as a matter of law (Ugarriza v. Schmieder, 46 NY2d 471 [1979]). Here, not only has YMCA failed to met its burden of proof, there are, in any event, triable issues of fact requiring the denial of YMCA's motion (Winegrad v. New York Univ. Med. Ctr., 64 NY2d 851, 853 [1985]; Rotuba Extrudes v. Ceppos, 46 NY2d 223 [1978]). The determination whether YMCA was negligent is for the trier of fact to decide (Ugarriza v. Schmieder, supra).

Since the note of issue was filed, this case is ready to be tried. Ruiz shall serve a copy of this decision and order on the Clerk in Trial Support so that the case may be scheduled for trial.

Conclusion [*5]

YMCA's motion for summary judgment is denied as it has not tendered sufficient evidence to eliminate any material issues of fact from the case. This case is ready to be tried. Ruiz shall serve a copy of this decision and order on the Clerk in Trial Support so that the case may be scheduled for trial.

Any relief requested that has not been addressed has nonetheless been considered and is hereby expressly denied.

This constitutes the decision and order of the court.

Dated:New York, New York

January 5, 2010So Ordered:

______________________

Hon. Judith J. Gische, J.S.C.