Justice. Present: -against- INDEX NO: 7090/02. Defendant. Defendant' s Memorandum of Law in Support... Affirmation in Opposition Reply Affi rmation...

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1 SHORT FORM ORDER SUPREME COURT - STATE OF NEW YORK COUNTY OF NASSAU - PART 25 Present: HON. WILLIAM R. LaMARCA Justice JACK GABAY and MERYL GABAY Plaintiffs Motion Sequence #001 Submitted August 10, 2005 XXX -against- INDEX NO: 7090/02 CLUB MEDITERRANEE, S.A., CLUB MED, INC. CLUB MED HOLDING, N., CLUB MED FINANCE B., CLUB MED SALES, INCL., CLUB MED MANAGEMENT SERVICES, INC. SOCIETE D' INVESTISSEMENTS TOURISTIQUES DES ILES, and SOCIETE HOTELIERE DU CHABLAIS Defendant. The following papers were read on this motion: Notice of Motion..... Defendant' s Memorandum of Law in Support... Affirmation in Opposition Reply Affi rmation... Defendant, CLUB MED MANAGEMENT SERVICES, INC. (hereinafter referred to as " CMMS"), moves for an order, pursuant to CPLR 3212, granting summary judgment dismissing plaintiffs' complaint against it, on the merits. Plaintiffs, JACK GABAY and MERYL GABAY, oppose the motion which is determined as follows:

2 In this personal injury action, plaintiffs seek to recover money damages for alleged second degree burns sustained by JACK GABAY when he participated in lunchtime pool activities, on August 25, 2000, at the Hotel LaCaravalle, a Club Med resort in Guadaloupe. JACK GABAY states that, as part of a hotel organized pool game, he was instructed by a hotel employee to lay on a windsurfing board to swim across the pool and that he was burned on his abdomen because the surfboard had two(2) black tar strips down its center which were extremely hot from being in the sun prior to the game. The Court notes that it is uncontroverted that plaintiffs have sued a number of "Club Med" entities in this action for negligence in maintaining the surfoard and pool areas in a safe and danger free condition, but that only CMMS, a New York corporation, has been served with process. In support of its motion for summary judgment, CMMS submits the affidavit of its Vice-President and General Counsel, Eileen Kett. Ms. Kett states that CMMS, with a principal place of business at 75 Valencia Avenue, Coral Gables, Florida, is a " provider of administrative and accounting back office functions pursuant to a contract" (Kett affdavit, par.2). She asserts that CMMS does not, and did not in August 2000, own, lease, rent operate, manage, or control any aspect of the resort where plaintiff was injured. CMMS contends that before any defendant may be held liable for negligence, it must be shown that the defendant owes the plaintiff a duty, citing, inter alia, Pulka v Edelman, 40 NY2d 781, 390 NYS2d 393, 358 NE2d 1019 (C.A. 1976), and that no such showing has been made with respect to it. In opposition to the motion, plaintiffs have submitted an affdavit of JACK GABAY as to the circumstances of his injuries, an unsworn accident report and an affirmation of counsel which argues, in conclusory fashion, that CMMS is an agent of defendant Societe

3 Hoteliere du Chablias (SHC), the owner of Hotel LaCaravalle, which is the Club Med resort where JACK GABAY was injured. She then argues that SHC and the Hotel are agents of CMMS. No evidence of either claim is presented. The Law Summary judgment is the procedural equivalent of a trial (S. J. Capelin Associates Inc. v Globe Mfg. Corp. 34 NY2d 338, 357 NYS2d NE2d 776 (C.A. 1974)). The proponent of a motion for summary judgment must make a prima facie showing of entitlement to judgment as a matter of law, offering sufficient evidence to demonstrate the absence of any material issues of fact (see Alvarez v Prospect Hosp. 68 NY2d 320, 508 NYS2d 923, 501 NE2d 572 (C.A. 1986); Zuckerman v City of New York 49 NY2d NYS2d 595, 404 NE2d 718 (C,A. 1980)). Once the movant makes itfprima facie showing, the burden shifts to the opponent, who must produce evidentiary proof in admissible form sufficient to establish the existence of material issues of fact which require a trial (Alvarez v Prospect Hasp., supra; Zuckerman v City of New York, supra). Mere conclusions expressions of hope or unsubstantiated allegations are insuffcient Zuckerman v City New York, supra; S. J. Capelin Associates Inc. v Globe Mfg. Corp. judgment will not be defeated by surmise, conjecture or suspicion ( supra). Summary Shaw v Time-Life Records 38 NY2d 201, 379 NYS2d 390, 341 NE2d 817 (C.A. 1975)). Discussion On the record before it, it is the Court' s judgment that CMMS has made out a prima facie case for summary judgment dismissing the complaint against it. Furthermore, in the absence of any evidence raising a genuine issue of fact as to whether defendant owned

4 or controlled the resort (Stein v Club Med Sales, Inc. 239 AD2d 402, 658 NYS2d 639 (2 Dept. 1997)), or evidence of any agency relationship and dominion and control between the resort owner and the named defendant (Goessel v Club Med Sales, Inc., 209 AD2d 356, 618 NYS2d 791 Dept. 2004)), plaintiffs have failed to raise a triable issue of fact for trial. Conjecture and surmise about the relationships of the various defendants does not suffice. Finally, plaintiffs' argument that the motion is premature, as they seek to depose CMMS, must be rejected. Issue was joined more than 3 years ago, and plaintiffs filed a note of issue in April, Summary judgment may not be defeated on the grounds that discovery is needed, where as here, the side advancing such an argument has failed to ascertain the facts due to its own inaction ( Meath v Mishrick 68 NY2d 992, 510 NYS2d 560, 503 NE2d 115 (C. A. 1986); Household Bank, NA v Mitchell 12 AD3d 568, 785 NYS2d 116 (2 Dept. 2004)). Based on the foregoing, it is hereby Conclusion ORDERED, that the motion by defendant, CLUB MED MANAGEMENT SERVICE INC., for summary judgment dismissing the complaint against it granted; and it is further ORDERED, that the action is in all respects dismissed as no other defendant has been served nor appeared. All further requested relief not specifically granted is denied. This constitutes the decision and order of the Court. Dated: October WILLIAM R. LaMARCA, J. i ENTERED OC OUN lmu COUNTY Cl!PK' S OFFICE

5 TO: Jaspan Schlesinger Hoffman LLP Attorneys for Plaintiffs 300 Garden City Plaza Garden City, NY Strongin Rothman & Abrams, LLP Attorneys for Defendant Club Med Management Services, Inc. 50 Broadway, Suite 2003 New York, NY gabay-clubmed,#01/dismiss