Miglino v. Bally Total Fitness of Greater N.Y., Inc.

• Citation: 2013 NY Slip Op 00780
• Decision Date: 07 February 2013
• Docket Number: No. 10,10
• Court: New York Court of Appeals Court of Appeals
• Parties: Gregory C. Miglino, Jr., & c., Respondent, v. Bally Total Fitness of Greater New York, Inc., Appellant, et al., Defendant.

2013 NY Slip Op 00780

Gregory C. Miglino, Jr., & c., Respondent,
v.
Bally Total Fitness of Greater New York, Inc., Appellant, et al., Defendant.

No. 10

Court of Appeals of New York

Decided on February 7, 2013

Brian P. Heermance, for appellant.

John V. Decolator, for respondent.

READ, J.:

On March 26, 2007, plaintiff Gregory C. Miglino, Jr.'s father, Gregory C. Miglino, Sr. (Miglino or decedent), collapsed while near the racquetball courts at a health club owned and operated by Bally Total Fitness of Greater New York, Inc. (Bally). Kenneth LaGrega, employed by Bally as a personal trainer, was standing at the club's front desk with the receptionist when he learned of this medical emergency. The receptionist immediately called 911, and an announcement was broadcast summoning anyone with medical training to the front desk; the receptionist also brought the club's Automatic External Defibrillator (AED) to

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Miglino's side. An AED is a portable medical device for delivery of an electroshock to restore normal heart rhythm (see Public Health Law § 3000-b [a]). As the 911 call was being made, LaGrega rushed to assist Miglino.

LaGrega saw that Miglino was lying on his back with his eyes open, breathing heavily and with normal color; he checked for and found a faint pulse. LaGrega was certified to operate an AED and to administer cardio-pulmonary resuscitation (CPR), having successfully completed courses taught under the aegis of the American Heart Association to instruct people in these skills. He did not start CPR or use the AED, though, later declaring that he was trained to view such measures as "inappropriate in light of a breathing individual with detectable pulse." LaGrega then left briefly to check on the status of the 911 response. When he returned, two club members previously known to him to be a doctor and a medical student were attending to Miglino and administering CPR. LaGrega assisted as needed, having concluded that the doctor and medical student were "in a better position [than he was] to continue caring for [Miglino] until paramedics arrived," a judgment "in keeping with [his] American Heart Association training, as well as the emergency training [he] received from Bally." Upon arrival, the ambulance personnel administered shocks to Miglino with an AED, but he never revived.

By summons and complaint filed on February 26, 2008, plaintiff, as executor of decedent's estate, brought a wrongful death suit against Bally and Bally Total Fitness Corporation (Bally Total). The complaint alleged that Bally and Bally Total neither "provided nor caused to be provided a . . . person in attendance at the club" who was properly certified to operate an AED or perform CPR, as required by New York law; and that Bally employees negligently failed to use an available AED, or failed to use it within sufficient time, to save Miglino's life. Bally and Bally Total served a joint answer to the complaint on April 8, 2008; by notice of motion dated June 23, 2008, they moved to dismiss pursuant to CPLR 3211 (a) (7) for failure to state a cause of action.

Bally primarily argued that it was immune from liability under the State's Good Samaritan Law (Public Health Law § 3000-a); Bally Total, that it did not own or operate the health club. In support of the motion, Bally submitted LaGrega's affidavit, in which he described his training and the actions that he and other club personnel took to assist Miglino, related above, and copies of his CPR/AED certificate from the American Heart Association; Bally Total furnished the affidavit of its assistant vice president and associate general counsel, who attested that Bally Total did not own, operate, manage or employ any personnel at the club, and therefore could not be vicariously liable for the acts or omissions alleged by plaintiff.

Plaintiff opposed Bally's motion, contending that the Good Samaritan Law did not apply because, among other reasons, Bally's employees did not, in fact, render emergency treatment to Miglino since LaGrega neglected to apply the AED; and that Bally had a statutory and common law duty to use the AED. Plaintiff submitted the affidavit of a board-certified

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cardiologist, who opined that Miglino's "chances of survival would have been significantly higher if the AED had been used within the first few minutes after his collapse" rather than upon arrival of the ambulance. Plaintiff did not oppose dismissal of the complaint against Bally Total.

On June 9, 2010, Supreme Court denied the motion in its entirety. The court commented that Bally's evidentiary affidavits made out a "strong, but not conclusive showing that the plaintiff does not have a cause of action." The court added, however, that "plaintiff [was] not obligated to come forth with evidence as he would on a motion for summary judgment to withstand dismissal"; as a result, the judge, "being only concerned with the sufficiency of the plaintiff's pleadings, and not evidentiary matters," determined that the complaint stated cognizable claims.

In a decision and order dated December 27, 2011, the Appellate Division modified Supreme Court's order by dismissing the complaint against Bally Total and otherwise affirming (92 AD3d 148 [2d Dept 2011]). The Second Department held, contrary to the First Department's decision in Digiulio v Gran, Inc. (74 AD3d 450, 453 [2010], affd on other grounds 17 NY3d 765 [2011]), that General Business Law § 627-a, which mandates certain health clubs to maintain on premises at least one AED and an individual trained to operate it, "also imposes an affirmative duty of care upon the facility so as to give rise to a cognizable statutory cause of action in negligence for failure to do so" (92 AD3d at 150). The court additionally concluded that the complaint stated a cause of action against Bally "based solely upon common law negligence" because "LaGrega assumed a duty by coming to the decedent's assistance" (id. at 159, 160). Finally, the Appellate Division held that Bally Total was entitled to dismissal of the complaint insofar as asserted against it, as conceded by plaintiff both at Supreme Court and on appeal.

Bally subsequently moved in the Appellate Division for permission to appeal. By order entered on March 19, 2012, that court certified the following question to us: "Was the opinion and order of [the Appellate Division], dated December 27, 2011, properly made with respect to the cause of action asserted against [Bally]?" We now answer the question in the negative, but affirm the result on procedural grounds only.

General Business Law § 627-a

General Business Law § 627-a (1) requires every health club, as defined under Public Health Law § 3000-d (1) (b),¹ with 500 or more members to

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"have on premises at least one [AED] and [to] have in attendance, at all times during business hours, at least one individual performing employment or individual acting as an authorized volunteer who holds a valid certification of completion of a course in the study of the operation of AEDs and a valid certification of the completion of a course in the training of [CPR] provide by a nationally recognized organization or association."

Subdivision (2) provides that "[h]ealth clubs and staff pursuant to [General Business Law § 627-a (1)] shall be deemed a 'public access defibrillation provider' as defined in [Public Health Law § 3000-b (1) (c)] and shall be subject to the requirements and limitations of such section" (General Business Law § 627-a [2]). Under...