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Supreme Court of New York, Appellate Division, Second Department
February 9, 2022, Decided
2019-08257 (Index No. 606781/16)
DECISION & ORDER
ORDERED that the order is modified, on the law, by deleting the provisions thereof granting those branches of the [*855] plaintiff's cross motion which were for [**2] 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 [**3] 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.
Full case includes Shepard's, Headnotes, Legal Analytics from Lex Machina, and more.
202 A.D.3d 853 *; 2022 N.Y. App. Div. LEXIS 867 **; 2022 NY Slip Op 00892 ***; 162 N.Y.S.3d 440
[***1] Yael Sebagh, respondent-appellant, v Capital Fitness, Inc., et al., appellants-respondents.
Notice: THE PAGINATION OF THIS DOCUMENT IS SUBJECT TO CHANGE PENDING RELEASE OF THE FINAL PUBLISHED VERSION.
THIS OPINION IS UNCORRECTED AND SUBJECT TO REVISION BEFORE PUBLICATION IN THE OFFICIAL REPORTS.
Prior History: [**1] 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.
affirmative defense, summary judgment, cross motion, issue of liability, electrical box, summary judgment motion, treadmill
Civil Procedure, Summary Judgment, Entitlement as Matter of Law, Appropriateness, Torts, Negligence, Elements, Breach of Duty, Judgments, Entitlement as Matter of Law, Burdens of Proof, Movant Persuasion & Proof, Defenses, Comparative Fault, Procedural Matters, Trials, Jury Trials, Province of Court & Jury, General Premises Liability, Dangerous Conditions, Duty to Maintain, Obvious Dangers, Duty to Warn