Pecora v. Fitness Int'l, LLC

• Decision Date: 11 January 2023
• Docket Number: 2019–13498,Index No. 150176/17
• Citation: 212 A.D.3d 644,182 N.Y.S.3d 699
• Parties: Michael PECORA, appellant, v. FITNESS INTERNATIONAL, LLC, et al., respondents.
• Court: New York Supreme Court — Appellate Division

212 A.D.3d 644

182 N.Y.S.3d 699

Michael PECORA, appellant,

v.FITNESS INTERNATIONAL, LLC, et al., respondents.

2019–13498

Index No. 150176/17

Supreme Court, Appellate Division, Second Department, New York.

Argued—November 28, 2022

January 11, 2023

Harmon, Linder & Rogowsky (Mitchell Dranow, Sea Cliff, NY, of counsel), for appellant.

Goldberg Segalla, LLP, Buffalo, NY (William T. O'Connell and Matthew Miller of counsel), for respondents.

MARK C. DILLON, J.P., JOSEPH A. ZAYAS, DEBORAH A. DOWLING, LILLIAN WAN, JJ.

DECISION & ORDER

In an action to recover damages for personal injuries, the plaintiff appeals from an order of the Supreme Court, Richmond County (Judith N. McMahon, J.), dated June 19, 2019. The order, insofar as appealed from, granted the defendants’ motion for summary judgment dismissing the complaint.

ORDERED that the order is affirmed insofar as appealed from, with costs.

On July 18, 2014, the plaintiff became a member of a health club owned and operated by the defendants. According to the plaintiff, "towards the end of July," he developed an infection on his stomach and was treated at a local hospital for four or five days. Thereafter, the plaintiff continued to use the health club, including a sauna on the premises. The plaintiff used the sauna on October 31, 2014, and, approximately one day later, he developed MRSA, a type of bacterial infection.

Thereafter, the plaintiff commenced this personal injury action against the defendants, alleging that he contracted both infections as a result of using the sauna at the defendants’ facility. The defendants moved for summary judgment dismissing the complaint. In an order dated June 19, 2019, the Supreme Court, inter alia, granted the defendants’ motion. The plaintiff appeals.

"A property owner, or a party in possession or control of real property, has a duty to maintain the property in a reasonably safe condition" ( Chang v. Marmon Enters., Inc., 172 A.D.3d 678, 678, 99 N.Y.S.3d 397 ; see Basso v. Miller, 40 N.Y.2d 233, 241, 386 N.Y.S.2d 564, 352 N.E.2d 868 ; Marazita v. City of New York, 202 A.D.3d 951, 952, 163 N.Y.S.3d 219 ). To hold a defendant liable for a breach of this duty, a plaintiff must prove, among other things, "that a defective condition existed and was a proximate cause of his or her injuries" ( Nunez v. Chase Manhattan Bank, 155 A.D.3d 641, 643, 63 N.Y.S.3d 481 ). A defendant can make a prima facie showing of entitlement to summary judgment dismissing the complaint by demonstrating that "there was no dangerous or defective condition that could have caused" the plaintiff's injury ( Touloupis v. Sears, Roebuck & Co., 155 A.D.3d 807, 809, 63 N.Y.S.3d 518 ; see Witkowski v. Island Trees Pub. Lib., 125 A.D.3d 768, 769–770, 4 N.Y.S.3d 65 ).

Here, the defendants made a prima facie showing that the plaintiff would not be able to prove, without resorting to speculation, that the pathogen which caused his infections was present at the defendants’ facility (see Payano v. Hempstead Union Free School Dist., 54 A.D.3d 322, 863 N.Y.S.2d 61 ; Velez v. City of New York, 24 A.D.3d 239, 806 N.Y.S.2d 490 ; Pagan v. Local 23–25 Intl. Ladies Garment Workers Union, 234 A.D.2d 37, 650 N.Y.S.2d 214 ; cf. Manavazian v. Pietromonaco, 188 A.D.3d 866, 135 N.Y.S.3d 476 ; Vojvodic v. City of New York, 148 A.D.3d 1086, 51 N.Y.S.3d 534 ). The defendants’ submissions in support of their motion demonstrated that MRSA can be transmitted through a variety of common everyday interactions, that the defendants’ facility underwent regular cleaning, and that the facility received no reports or complaints of anyone contracting...