SHORT FORM ORDER SUPREME COURT OF THE STATE OF NEW YORK. Plaintiff

Transcription

1 SHORT FORM ORDER SUPREME COURT OF THE STATE OF NEW YORK Present: HON. LAWRENCE J. BRENNAN Acting Justice Supreme Court x TIlAL P ART: 52 SHAHRAM KASHANIAN a/kla SHAUN KASHANIAN -against- Plaintiff TSI GREAT NECK, INC., d/b/a NEW YORK SPORTS CLUB and TSI GREAT NECK, INC., d/b/a NEW YORK SPORTS CLUB NASSAU COUNTY INDEX NO.: 2920/04 MOTION DATE: 2/6/06. SUBMIT DATE: 2/710 SEQ. NUMBER 2&3 Defendant x The following papers have been read on this motion: Notice of Motion dated 1/9/06 Affidavit dated 1/9/06 Third-Party Defendant' s Memorandum of Law dated 1/9/06 Amended Notice of Motion dated 1/17/06 Plaintiff's Opposition to Defendant' s Motion dated 1/27/06 Memorandum of Law in Opposition to Defendant dated 1/30/06 Affirmation in Partial Opposition dated 2/17/06 Reply Affirmation in Support of Motion dated 2/23/06 Reply Affirmation dated 2/24/06 The motion by Third Part Defendant, Nautilus, Inc. ("Nautilus ), and the cross-motion by Defendant, TSI Great Neck, Inc. d//a New York Sports Club TSI"), both seeking summary judgment, are denied for the reasons set forth herein.

2 Plaintiff commenced this action for personal injuries allegedly sustained on December , when one of the arms of the Nautilus Freedom Trainer serial #F24TXX ("Freedom Trainer ) hit him in the head while plaintiff was working out at TSI's gym in Great Neck, N.Y. Nautilus manufactured the Freedom Trainer and TSI commenced a third part action as to it. Plaintiff was an experienced user of the Freedom Trainer (see Exhibit F 39-40, 42 annexed to Nautilus' motion). Plaintiff indicated on the third set of the seventh repetition, the left arm of the machine hit him in the head (see Exhibit F pg. 60). Plaintiff states he checked to make sure the adjustment pin was in (Exhibit F, pg. 45). TSI indicated its employees inspected the machine after the incident and found it to be fine (see Exhibit G, pg. 19, Exhibit I both annexed to Nautilus' motion; see the affidavit of Judith Hickey, a TSI employee and manager offitness equipment repairs, see Exhibit A annexed to TSI's Affirmation in Partial Opposition). TSI indicated its employees checked all its machines daily (see Exhibit G, pg. 24-, annexed to Nautilus ' motion). Nautilus has also offered the expert Affidavit of James F. Vigani, a registered professional engineer. Mr. Vigani inspected the particular machine Freed Trainer serial #F2FTXX on December , and found the unit to be in good repair and functioning properly. Plaintiff has offered the expert

3 Affidavit of Steven F. Kane, (see Exhibit A annexed to plaintiffs opposition). Mr. Kane inspected Freedom Trainer serial #F2FTXX on September , and Mr. Kane found excessive wear. Mr. Kane opined such excessive wear could mean the restraining pin had less metal to hold it in place. Mr. Kane also found the left arm of the unit distorted so as to allow excessive movement. Mr. Kane noted a visual inspection should have revealed these problems., a plaintiff must It is fundamental that to recover in a negligence action, and that the establish that the defendant owed him a duty to use reasonable care defendant breached that duty 325). (Akins Glens Falls City School District 53 NY2d An owner or possessor must act as a reasonable person in maintaining his or her propert in a reasonably safe condition in view of all the circumstances, including the likelihood of injury to others, the seriousness of the injury, and the burden of avoiding the risk (Peralta Henriquez 100 NY2d 139). The owner of a sporting venue continues to owe a duty to exercise care to make conditions as safe as they appear to be; if risks of the activity are fully comprehended or perfectly obvious, the plaintiff has consented to them and the defendant has performed its duty; participants in sporting events will not be deemed to have assumed risks of reckless or intentional conduct or of concealed or unreasonably increased risks (Morgan State of New York 90 NY2d 471).

4 As noted, TSI has indicated that all its machines were inspected on a daily basis. However, a negligent failure to discover a condition that should have been discovered can be no less of a breach of due care than a failure to respond to the actual notice of such a condition (Blake City of Albany, 48 NY2d 875). One who undertakes to perform inspections becomes subject to a duty to perform such inspection in a non negligent manner (West Side Corp. PPG Industries, Inc. 225 AD2d 459). Here, there is an issue of fact as to whether TSI's employees properly performed inspection of the Freedom Trainer. The fact that the plaintiff may have been comparatively negligent does not negate the liability of the landlord who has a duty to keep the premises safe (Powers St. Bernadette s Roman Catholic Church 309 AD2d 1219). The owner or possessor of propert has a duty to maintain the propert in a reasonably safe condition and may be held liable for injuries arising from a dangerous condition on the propert if such owner or possessor either created the condition or had actual or constructive notice of it and a reasonable time within which to remedy it (Patrick Bally s Total Fitness, 292 AD2d 433). Certainly there is a factual issue whether any problem with the machine could have been detected by proper inspection of the TSI employees.

5 A product liability cause of action requires an establishment that the injuries alleged by plaintiff were proximately caused by a defect in the machine or device (Voss Black Decker Mfg. Co. 59 NY2d 102). As to Nautilus, plaintiffs expert has raised the issue as to whether or not the Freedom Trainer was defective and could have caused or contributed to plaintiffs injury. As to the theory that plaintiff assumed the risk of his particular injury, a plaintiff does not assume concealed risks (see Morgan State of New York supra). The defendants have submitted no proof establishing that the risk of being strck in the head by an arm of the Freedom Trainer is inherent in the use of such a device (see Kreil County of Niagara, 8 AD3d 1001). As to the conflicting expert affdavits, credibility of witnesses, trthfulness and accuracy of testimony, whether contradicted or not, and the significance of weaknesses and discrepancies are all issues for the trer of fact (Pedone Equipment Co., Inc. 239 AD2d 397). Through the affidavit of the plaintiff s expert, plaintiff has shown facts and conditions from which the alleged negligence of the defendant and the causation of the accident by that negligence could be reasonably inferred (see Bulman R Enterprise 17 AD3d 1139). Here, the motion papers presented a credibility battle between the parties experts (Barbuto Winthrop University Hospital, 305 AD2d 623).

6 The resolution of issues of: (1) credibility of both expert and lay witnesses and, (2) the accuracy of their testimony, are matters within the province of the jury (Halkias Otolaryngology-Facial Plastic Surgery Associates, pc. 282 AD2d 650). In view of the conflicting expert affidavits, summary judgment herein must be denied (Zarzana Sheepshead Bay Obstetrics and Gynecology, P., 289 AD2d 570). Finally, plaintiff has raised the issue as to whether the doctrine of res ipsa loquitur is relevant herein. The doctrine of res ipsa loquitur applies where and only where the plaintiff establishes that the event; 1) is a kind that would not ordinarily occur in the absence of someone s negligence; 2) was caused by an agency or instrmentality within the exclusive control of the defendant; and 3) was not due to any voluntary action or contrbution on the part of the plaintiff (Hambat St. Francis Hospital 89 NY2d 489). Here, the machine was in TSI' s Club but many patrons used and had access to the Freedom Trainer. It was delivered in October, 2003; however, the incident occurred in December res, The Court finds that the doctrine of ipsa loquitur does not apply herein (see Sowa v S. J. N.H Realty Corp. 21 AD2d 893). Wherefore, the Defendant' s motion is denied and the Plaintiffs crossmotion is denied.

7 This shall constitute the Decision and Order of the Court. Dated: April 25, 2006 ENTERED t'a't SSAU COUNTY NTY CLERK' S OFFICE