Sebagh v. Capital Fitness, Inc.

• Decision Date: 09 February 2022
• Docket Number: 2019-08257,Index No. 606781/16
• Citation: 202 A.D.3d 853,162 N.Y.S.3d 440
• Parties: Yael SEBAGH, respondent-appellant, v. CAPITAL FITNESS, INC., et al., appellants-respondents.
• Court: New York Supreme Court — Appellate Division

202 A.D.3d 853

162 N.Y.S.3d 440

Yael SEBAGH, respondent-appellant,

v.CAPITAL FITNESS, INC., et al., appellants-respondents.

2019-08257

Index No. 606781/16

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

Argued—November 23, 2021

February 9, 2022

Litchfield Cavo LLP, New York, NY (Patricia A.Carbone of counsel), for appellants—respondents.

Leahey & Johnson, P.C, New York, NY (Jason L. Paget, Peter James Johnson, Jr., Joanne Filiberti, and Gabriel Krausman of counsel), for respondent-appellant.

COLLEEN D. DUFFY, J.P., ROBERT J. MILLER, JOSEPH A. ZAYAS, LARA J. GENOVESI, JJ.

DECISION & ORDER

In an action to recover damages for personal injuries, the defendants appeal, and the plaintiff cross-appeals, from an order of the Supreme Court, Nassau County (Anthony L. Parga, J.), entered May 30, 2019. The order, insofar as appealed from, denied the defendants’ motion for summary judgment dismissing the complaint and granted those branches of the plaintiff's cross motion which were for summary judgment on the issue of liability and dismissing the fourth affirmative defense. The order, insofar as cross-appealed from, denied that branch of the plaintiff's cross motion which was for summary judgment dismissing the sixth affirmative defense.

ORDERED that the order is modified, on the law, by deleting the provisions thereof granting those branches of the plaintiff's cross motion which were for summary judgment on the issue of liability and dismissing the fourth affirmative defense, and substituting therefor provisions denying those branches of the plaintiff's cross motion; as so modified, the order is affirmed insofar as appealed and cross-appealed from, without costs or disbursements.

The plaintiff commenced this action to recover damages for personal injuries. The plaintiff alleged that she was injured when she attempted to disembark from a treadmill at a fitness center. As she stepped off the treadmill, the plaintiff allegedly tripped or stepped on an electrical box that was located on the floor next to the treadmill, which caused her to fall and sustain personal injuries. The plaintiff alleged that the building was owned by the defendant Simon Property Group, L.P., and leased by the defendants Capital Fitness, Inc., and Capital Fitness–Roosevelt, LLC.

The defendants interposed an answer which included 10 affirmative defenses. As relevant here, the third affirmative defense asserted the primary assumption of risk doctrine, the fourth affirmative defense asserted that the allegedly dangerous condition was open and obvious, and the sixth affirmative defense generally asserted that the plaintiff was comparatively negligent.

The defendants moved for summary judgment dismissing the complaint. The plaintiff cross-moved, inter alia, for summary judgment on the issue of liability, and dismissing the third, fourth, and sixth affirmative defenses.

In an order entered May 30, 2019, the Supreme Court denied the defendants’ motion, and granted those branches of the plaintiff's cross motion which were for summary judgment on the issue of liability and dismissing the third and fourth affirmative defenses. The court denied that branch of the plaintiff's cross motion which was for summary judgment dismissing the sixth affirmative defense. The defendants appeal, and the plaintiff cross-appeals.

On their appeal, the defendants contend that the Supreme Court erred in denying their motion for summary judgment dismissing the complaint and in granting those branches of the plaintiff's cross motion which were for summary judgment on the issue of liability and dismissing the fourth affirmative defense. On her cross appeal, the plaintiff contends that the court erred in denying that branch of her cross motion which was for summary judgment dismissing the sixth affirmative.

"A plaintiff in a negligence action moving for summary judgment on the issue of liability must establish, prima facie, that the defendant breached a duty owed to the plaintiff and that the defendant's negligence was a proximate cause of the alleged injuries" ( Ramirez v. Wangdu, 195 A.D.3d 646, 646, 144 N.Y.S.3d 630 ; see Rodriguez v. City of New York, 31 N.Y.3d 312, 319–320, 76 N.Y.S.3d 898, 101 N.E.3d 366 ; Maher v. Vargas–Bonilla, 191 A.D.3d 867, 868, 138 N.Y.S.3d 912 ; Stukas v. Streiter, 83 A.D.3d 18, 23, 918 N.Y.S.2d 176 ). "In addition, the issue of a plaintiff's comparative negligence may be decided in the context of a plaintiff's motion for summary judgment on the issue of liability where, as here, the plaintiff also seeks dismissal of the defendant's affirmative defense alleging comparative negligence" ( Ramirez v. Wangdu, 195 A.D.3d at 646, 144 N.Y.S.3d 630 ; see Poon v. Nisanov, 162 A.D.3d 804, 808, 79 N.Y.S.3d 227 ). A motion for summary judgment "shall be granted if, upon all the papers and proof submitted, the cause of action or defense shall be established sufficiently to warrant the court as a matter of law in directing judgment in favor of any party" ( CPLR 3212[b] ; see Alvarez v. Prospect Hosp., 68 N.Y.2d 320, 324, 508 N.Y.S.2d 923, 501 N.E.2d 572 ).

As relevant here, while the owner or possessor of real property may have a duty to maintain its premises in a reasonably safe condition (see Basso v. Miller, 40 N.Y.2d 233, 241, 386 N.Y.S.2d 564, 352 N.E.2d 868 ), "there is no duty to protect or warn against an open and obvious condition which, as a matter of law, is not inherently dangerous" ( Sneed v. Fulton Park Four Assoc., L.P., 192 A.D.3d 1058, 1059, 145 N.Y.S.3d 86 ; see Cupo v. Karfunkel, 1 A.D.3d 48, 52, 767 N.Y.S.2d 40 ). A condition is open and obvious if it is "readily observable by those employing the reasonable use of their senses, given the conditions at the time of the accident" ( Lazic v. Trump Vil. Section 3, Inc.,...