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

2013 NY Slip Op 780, 20 N.Y.3d 342, 961 N.Y.S.2d 364, 985 N.E.2d 128



CPLR 3211(a)(7) limits a court to an examination of the pleadings to determine whether they state a cause of action. Further, the court must accept facts alleged as true and interpret them in the light most favorable to the plaintiff; and the plaintiff may not be penalized for failure to make an evidentiary showing in support of a complaint that states a claim on its face. As long as a pleading is facially sufficient, the plaintiff is not obligated to come forward with claim-sustaining proof in response to a motion to dismiss unless the court treats the motion as one for summary judgment and so advises the parties.


An executor filed a wrongful death action against a health club owner alleging its employees negligently failed to use an Automatic External Defibrillator (AED) to save a decedent's life. The owner moved to dismiss the case arguing it was immune from liability under the Good Samaritan Law. The Court denied the owner's motion to dismiss.


Did the law create a duty  from a health club to its members to use an AED required by that provision to be maintained onsite?




The court of appeals held that General Business Law § 627-a did not create a duty running from a health club to its members to use an AED required by that provision to be maintained onsite. The provisions of General Business Law § 627-a, read together with Public Health Law §§ 3000-a and 3000-b, and the words "volunteer," § 627-a(1), and "voluntarily," § 627-a(3), evinced the Legislature's intent to protect health clubs and their employees from the risk of liability for ordinary negligence with respect to AEDs. The case was not in a posture to be resolved as a matter of law on the basis of the parties' affidavits, and the executor had at least pleaded a viable cause of action at common law. The complaint asserted that the owner did not employ or properly employ lifesaving measures regarding the decedent after he collapsed. The owner's motion was supported by affidavits that contradicted that claim by purporting to show that the minimal steps adequate to fulfill a health club's limited duty to a patron apparently suffering a coronary incident were, in fact, undertaken. However, the matter went to the court of appeals on a motion to dismiss, not a motion for summary judgment.

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