Warhit v North End Fitness & Training

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Warhit v North End Fitness & Training 2018 NY Slip Op 34240(U) December 31, 2018 Supreme Court, Westchester County Docket Number: Index No. 60637/2017 Judge: Sam D. Walker Cases posted with a "30000" identifier, i.e., 2013 NY Slip Op 30001(U), are republished from various New York State and local government sources, including the New York State Unified Court System's eCourts Service. This opinion is uncorrected and not selected for official publication. FILED: WESTCHESTER COUNTY CLERK 01/04/2019 11:31 AM NYSCEF DOC. NO. 42 INDEX NO. 60637/2017 RECEIVED NYSCEF: 01/04/2019 commence the the statutory statutory To commenc~ time for for appeals appeals as of of right right time (CPLR (CPLR 5513[a]), 5513[a]), you are are advised to serve serve a copy copy advised of this this order, order, 'with with notice notice of of entry, entry, upon upo~ all parties. parties. of ! SUPREME COURT COURT OF THE THE STATE STATE OF NEW NEW YORK YORK SUPREME COUNTY OF WESTCHESTER WESTCHESTER COUNTY PRESENT: HON. SAM SAM D. WALKER, WALKER, J.S.C. J.S.C. PRESENT: --------------"--------------------------------------------------------------J( ILiSSA WARHIT WARHIT and PAUL PAUL B. WARHIT WARHIT ILISSA ~ ~~~~ Plaintiff, Decision and Order Order Decision IndeJ( No. 60637/2017 60637/2017 Index Motion Sequence Sequence 1 Motion -against-against- -----------------------x NORTH END END FITNESS FITNESS & TRAINING, TRAINING, NORTH ' Defendant. Defendant. ·---------------------x ------------------------------------------------------------------------------J( The following following documents documents were were received received and considered considered in connection connection with with the Th~ above-captioned matter: matter: above-captioned •" ' Notice of Motion/Affirmation/Exhibits Motion/Affirmation/EJ(hibits A-I Notice Affirmation in Opposition/Affidavit/Exhibits Opposition/Affidavit/EJ(hibits A-D A-D Affirmation Reply Affirfnation Affirmation Reply g !I 1-11 12-17 12-17 18 , I Upo,n the foregoing foregoing papers, papers, it is ordered ordered that that the motion motion is denied. denied. Upon ·, Factual and Procedural Procedural Background Background Factual The plaintiffs, plaintiffs, llissa lIissa Warhit Warhit ("Warhit") ("Warhit") and Paul Warhit Warhit commenced commenced this this action action by The filing a surilmons summons and complaint complaint on July July 19, 2017, 2017, seeking seeking damages damages for for injuries injuries Warhit Warhit filing ' ! allegedly allegedly sustained sustained on January January 12, 2017, 2017, when when she she stepped stepped on a moving moving treadmill treadmill at North North ; ·J Fitness & Training. Training. Paul Warhit Warhit seeks seeks a derivative derivative claim claim for deprivation deprivation of Warhit's Warhit's End Fitness for ! .. , service, so¢iety society and consortium. consortium. service, The, defendant defendant now now files files the instant instant motion motion for for summary summary judgment, for an order order The; judgment, for I'I;"; dismissing, all claims. claims. The The defendant defendant argues argues that that the plaintiff plaintiff has completely completely failed failed to dismissing; : ' sustain het her prima prima facie facie burden burden of of proof proof as a matter matter of of law to establish establish liability liability upon upon the sustain [* 1] 1 of 5 FILED: WESTCHESTER COUNTY CLERK 01/04/2019 11:31 AM NYSCEF DOC. NO. 42 INDEX NO. 60637/2017 RECEIVED NYSCEF: 01/04/2019 "i defendant causing or contributing contributing to her her accident. accident. The argues that that Warhit's defendant for for causing The defendant defendant argues Warhit's contradictory deposition deposition testimony how and where accident occurred fatally contradictory testimony about about how where the accident occurred is fatally insufficient as a matter matter of law. The The plaintiff plaintiff argues argues that that there there is no duty property owner insufficient duty for for a property owner to protect from an open condition and that that the the doctrine doctrine of of assumption protect others others from open and obvious obvious condition assumption of risk applies the activity activity is perfectly perfectly obvious plaintiff and the plaintiff plaintiff applies if the the risk of of the obvious to the the plaintiff voluntarily engages in the activity. activity. voluntarily engages opposition, Warhit Warhit argues argues that motion must must be denied denied because because there In opposition, that the motion there are triable issues of fact. She She argues argues that that the defendant defendant fails fails to offer offer proof proof that that the condition condition triable issues was not inherently inherently dangerous does not allege that the itself was dangerous and Warhit Warhit does allege that the treadmill treadmill itself was in a dangerous condition, but butthat Joseph Englander's Englander's actions created the dangerous condition. dangerous condition, that Joseph actions created dangerous condition. The failed to establish The plaintiff plaintiff contends contends that that the defendant defendant failed establish its burden. burden. In support support of of the the motion, motion, the defendant defendant relies relies upon, upon, her deposition deposition transcript, transcript, the deposition transcripts transcripts of llissa Ilissa and Paul Wahit plaintiff's husband), husband), an attorney's attorney's deposition Wahit (the plaintiff's affirmation,;and copies copies of the transcript. affirmation,;and transcript. As p~r per Joseph Joseph Englander Englander ("Englander"), ("Englander"), the owner owner of North End Fitness Fitness & Training, of North Training, process of cleaning the tread tread belts on four treadmills that he was in the process of cleaning four treadmills that accumulated accumulated salt salt members' sneakers. sneakers. To do this, Englander Englander cleaned cleaned the salt salt and and sand sand from from the the gym gym members' sand treadmills to dry the belts. While While the treadmills were treadmills were sand and then then activated activated the treadmills the tread tread belts. activated, Warhit one of the moving moving treadmills incurring injuries. injuries. Warhit's Warhit's activated, Warhit stepped stepped onto onto one treadmills incurring husband was using using an elliptical elliptical machine machine next next to the treadmills, noticed that four treadmills, noticed that all four husband treadmills moving, but did not not witness Englander testified testified that that he treadmills were were moving, witness Warhit's Warhit's accident. accident. Englander was next to Paul Warhit Warhit next next to the treadmills treadmills and observed Warhit step onto the was standing standing next observed Warhit step onto moving treadmill next to the elliptical machine. machine. the elliptical moving treadmill next [* 2] 2 of 5 FILED: WESTCHESTER COUNTY CLERK 01/04/2019 11:31 AM NYSCEF DOC. NO. 42 INDEX NO. 60637/2017 RECEIVED NYSCEF: 01/04/2019 , ' Discussion 1I Discussion party seeking summary judgment bears the initial initial burden burden of affirmatively A p~rty seeking summary judgment bears affirmatively demonstrating its entitlement entitlement to summary matter of law. (Winegrad (Winegrad v New New demonstrating summary judgment judgment as a matter York Univ. Med. Ctr., 64 NY2d Alvarez v Prospect NY2d 851, 853 [1985]; [1985]; Alvarez Prospect Hospital, Hospital, 68 NY2d 320 [1986]). Failure Failure of of a moving moving party party to tender sufficient evidence evidence to demonstrate [1986]). tender sufficient demonstrate as a matter matter of the ~bsence fact results failure to tender tender a prima facie of law the ~bsence of of a material material issue issue of of fact results in a failure prima facie ,, '. ' entitlementIto entitlement Ito summary summary judgment judgment and requires requires denial denial of of the motion, motion, regardless regardless of of the the sufficiency S'ofJf the the opposing opposing papers. papers. (McDonald (McDonald v Mauss, Mauss, 38 AD3d 727 [2d Dept Dept 2007]). AD3d 727 2007]). sufficiency ,, :~ If a sufficient sufficient prima facie showing the burden then shifts shifts to the prima facie showing is made, made, however, however, the burden then ,I non-moving party party to come come forward with evidence evidence to demonstrate demonstrate the existence existence of of a non-moving forward with material issue issue of fact fact requiring requiring a trial. trial. (CPLR (CPLR 3212[b]); 3212[b]); see also, Vermette Vermette v Kenworlh material Kenworlh Company, 68 NY2d 714, 717 [1986]). [1986]). The The parties' parties' competing competing contentions contentions are viewed viewed Truck Company, most favorable favorable to the party party opposing opposing the motion. motion. (Madne (Marine Midland in the light ~ost Midland Bank, N.A. !l Dino & Ai!ie's Transmission Co., 168 AD2d 610 [2d Dept Dept 1990]). 1990]). v Dino Af!ie's Automatic Automatic Transmission AD2d 610 ,I ' ' ~wner......of realty owes owes a duty duty to maintain maintain the property property in a reasonably reasonably safe safe "An ?Wner of realty condition" (Fishelson (Fishelson v Kramer Kramer Props., Props., LLC, 133 AD3d 706, 707 707 [2d Dept Dept 2015] AD3d 706, 2015] quoting quoting condition" :\ 1'!~ . Boudreau-Grillo 4 AD3d O]) "and must warn of Boudreau-Grillo v Ramirez, Ramirez, 7 74 AD 3d 1265, 1267[201 1267 [2010]) must warn of any any dangerous dangerous ' defective condition condition of of which which it has actual actual or constructive constructive notice" notice" (Id.). (ld.). "To be entitled entitled to or defective summary judgment, defendant [is] required required to show, show, prima prima facie, maintained its that it maintained summary judgment, the defendant facie, that create a premises safe condition that it did not have notice of or create premises in a reasonably reasonably safe condition and that have notice dangerous that posed dangerous ~ondition condition that posed a foreseeable foreseeable risk of injury injury to persons persons expected expected to be on , i the premises" premises" Gradwohl v Stop Stop & Shop Shop Supermarket Supermarket Co., LLC, 70 AD3d 636 [2d AD3d 634, 636 ,,., (see Gradwohl see also also Russo Russo v Home Home Goods, Inc., 119 AD3d Dept 2014]). 2014]). Dept 2010]; 201 O]i see AD3d 924, 925 [2d Dept [* 3] 3 of 5 FILED: WESTCHESTER COUNTY CLERK 01/04/2019 11:31 AM NYSCEF DOC. NO. 42 INDEX NO. 60637/2017 RECEIVED NYSCEF: 01/04/2019 • case, the defendant's owner owner does does not argue argue that not create create the In this case, the defendant's that he did not the condition of of which the plaintiff plaintiff complains, complains, but but asserts asserts that that it was open and obvious obvious which the was an open condition condition and that placement was not inherently inherently dangerous dangerous (Id.). (ld.). However, However, "[p]roofthat "[p]roofthat condition that its placement was not a dangerous dangerous condition condition is open open and obvious obvious merely merely negates negates the [defendant's] [defendant's] obligation obligation to of the condition, but does does not preclude preclude a finding finding of of liability liability against against a landowner landowner for warn of the condition, for a failure failure to maintain maintain the property property in a safe safe condition" condition" (Id.) (ld.) It only only raises raises an issue issue of of fact fact as to plaintiffs comparative comparative negligence negligence (see (see Devlin Devlin v lkram, Ikram, 103 AD3d AD3d 682 [2d Dept Dept 2013]}. 2013]). the plaintiffs Moreover, "[a] condition condition that that is ordinarily ordinarily apparent apparent to a person person making making reasonable reasonable use of of Moreover, her senses, senses, may may be rendered rendered a trap trap for for the unwary where condition is obscured obscured his or her the unwary where the the condition plaintiff is distracted"' distracted'" (see (see Cassone Cassone v State, State, 85 AD3d AD 3d 837, 839 839 [2d Dept Dept 2011]). 2011]). or the plaintiff Also, Also, "[tJhe "[t]he issue issue of of whether dangerous condition condition is open open and obvious obvious is fact specific, whether a dangerous fact specific, usually a question question of of fact resolve" (Id.). (ld.). and usually fact for for a jury jury to resolve" Here, the the defendant's defendant's own contentions, contentions, regarding regarding conflicting conflicting testimony, testimony, preclude preclude summary judgment, since there issues of of fact actually saw saw that that summary judgment, since there are issues fact as to whether whether Warhit Warhit actually the treadmills were were moving moving prior prior to stepping stepping one of of them whether she was distracted the treadmills them or whether was distracted the court for summary judgment and looking the television. television. "The looking at the "The function function of of the court on a motion motion for summary judgment resolve issues issues of of fact determine matters matters of of credibility, credibility, but but merely merely to determine determine is not to resolve fact or determine whether such such issues issues exist" exist" (see (see Castlepoint Castlepoint Ins. Ins. Co. Co. v Command Command Sec. Sec. Corp., Corp., 144 AD3d whether AD3d 731, 733 [2d Dept fact as to whether the fact fact that 731,733 Dept 2016]). 2016]). There There is also also an issue issue of of fact whether the that the treadmills were activated and in motion, motion, was open and obvious. obvious. treadmills were activated was open with regard the plaintiff's The defendant The defendant also also argues argues primary primary assumption assumption of of risk with regard to the plaintiff's the doctrine accident. accident. "Pursuant "Pursuant to the doctrine of of primary primary assumption assumption of of risk, a participant participant in a recreational recreational activity activity consents consents to those those commonly commonly appreciated appreciated risks which inherent in which are inherent arise out out of of the nature of of the sport generally generally and flow flow from such participation participation (see (see and arise the nature the sport from such [* 4] 4 of 5 FILED: WESTCHESTER COUNTY CLERK 01/04/2019 11:31 AM NYSCEF DOC. NO. 42 INDEX NO. 60637/2017 RECEIVED NYSCEF: 01/04/2019 Spiteri v Bisson, Bisson, 134 AD3d AD3d 799, 801 [2d Dept Dept 2015]). 2015]).'For assumption of of risk doctrine doctrine Spiteri 'For the assumption to apply, apply, it is not necessary necessary that injured plaintiff plaintiff foresee foresee the the exact exact manner manner in which which his that the injured or her her injury injury occurred, occurred, "so long as he or she is aware aware of of the potential potential for for injury injury of of the mechanism from which the injury results"' results'" (see (see Convey Convey v City City of of Rye School School Dist., 271 mechanism from which the injury AD2d 154 [2d Dept Dept 20001). 2000]). Further, Further, the doctrine will bar liability liability if the AD2d 154 the doctrine will not bar the risk is unassumed, concealed, concealed, or unreasonably unreasonably increased increased (see (see Alqurashi Party of of Four, Inc., unassumed, Alqurashi v Party AD3d 1047 1047 [2d Dept Dept 2011 2011]). start using using the then fell 89 AD3d ]). Here, Warhit Warhit did not start the treadmill treadmill and then during her exercise exercise routine. routine. Instead Instead she she stepped stepped on a treadmill supposedly unaware unaware that during treadmill supposedly that Therefore, it cannot cannot be said that assumed the the risk of using using the treadmill. treadmill. it was on. Therefore, that she assumed Therefore, based based on the Court finds the defendant defendant failed Therefore, the foregoing, foregoing, the the Court finds that that the failed to establish prima prima facie entitlement to judgment matter of law and failed eliminate all establish facie entitlement judgment as a matter failed to eliminate triable issues of fact. fact. triable issues Accordingly, based on the Accordingly, based the foregoing, foregoing, it is ORDERED that that the the motion motion for summary judgment denied. ORDERED for summary judgment is denied. The parties parties are directed directed to appear appear before before the Settlement Conference Conference Part Part on The the Settlement February 5, 5,2019 Courtroom 1600 1600 at 9:15 9:15 a.m. February 2019 in Courtroom The foregoing foregoing constitutes constitutes the Opinion, Decision Decision and Order Order of the the Court. Court. The the Opinion, Dated: White Plains, New New York York Dated: White Plains, December 31, 2018 2018 December ~.~ ~ J... J.S.C. ON. SAM D. WALKER, WALKER, J.S.C. [* 5] 5 of 5

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