Nickossi Cole, Plaintiff, v. Blink Fitness, Defendant(s). (2026)

This cases raises two issues arising from defendant Blink Fitness's ("defendant" or "Blink") disposal of plaintiff Nickossi Cole's ("plaintiff" or "Cole") personal property after terminating his gym membership: 1) whether plaintiff's inability to provide a more detailed inventory and valuation of the discarded property warrants dismissal as a discovery sanction; and 2) whether provisions of the membership agreement permitting Blink to "remove" property left in lockers and disclaiming liability for lost or damaged property entitle defendant to summary judgment. This court finds that neither form of relief is warranted. Defendant cannot obtain dismissal based on plaintiff's inability to identify property that defendant itself removed, retained, and ultimately discarded. The membership agreement's authorization to "remove" property from lockers does not, as a matter of law, authorize its destruction or disposal. Defendant's motion pursuant to CPLR 3126 and CPLR 3212 is denied.

Plaintiff commenced this action seeking $20,000 for personal property allegedly discarded by defendant. Plaintiff became a Blink member in March 2015. By affirmation dated April 8, 2026, Jasmine Leon ("Leon"), a club manager for Blink, averred that on May 19, 2025, plaintiff engaged in conduct that defendant considered inappropriate and in violation of his membership agreement. Leon averred that he found plaintiff sleeping in a stairwell, and then in a handicap bathroom. When confronted by staff members regarding his inappropriate behavior, plaintiff allegedly became aggressive and demanded to be left alone, and attempted to fight a staff member. Defendant called the police and the police refused to remove him because he was not trespassing. On May 21, 2025, Leon told plaintiff that his membership was terminated, and to remove all of his belongings from the complimentary lockers. At that time, plaintiff only retrieved hygieve products. Plaintiff was further told that if he left any items behind, they would be discarded if he did not claim them within seven days. On that day, Leon became aware that plaintiff was using five lockers to store various articles of clothing, children's toys, and other items. Leon called the police to escort him from the fitness club. After plaintiff left, Leon and other staff members emptied the lockers, placed the contents into five full 30-gallon trash bags, photographed the bags and stored them in a supply room. Plaintiff claimed that the bags contained shoes, pants, shirts, sweaters, coats, sneakers, and T. Shirts. Defendant discarded the property on May 29, 2025 "pursuant to Blink Fitness' policy." Plaintiff returned on June 3, 2025, and learned that the property had been discarded.

Section 13 of the membership agreement provided: "Lockers are provided solely for benefit and convenience of members. Management will remove any articles left in a locker overnight. Members must provide their own lock. Blink is not responsible for lost or stolen items or articles left in lockers. I release Blink of any and all claims, demands, suits, complaints, cause of action or any liability for loss, stolen or damage to my personal property."

Section 14 of the membership agreement provided: "Members are urged to avoid bringing valuables onto Club premises. Blink shall not be liable for the loss of or theft of, or damage to, the personal property of member of guests, including items left in lockers, or elsewhere in the Club."

Defendant moved pursuant to CPLR 3126 to strike and dismiss the complaint for plaintiff's alleged failure to comply with discovery orders issued by the court on January 5, 2026 and March 5, 2026. In particular, defendant contends that plaintiff failed to produce: "(a) documents and information sufficiently detailed to identify the property that plaintiff alleges Blink Fitness failed to return...; (b) documents and information sufficiently detailed to evidence the alleged value of the property...; and (c) documents and information related to the method of computation or calculation of plaintiff's alleged damages and the factual basis thereof." Alternatively, defendant moves pursuant to CPLR 3212 for summary judgment dismissing the action. Both branches of the motion are denied.

I. Dismissal for Failure to Comply With Discovery Orders is Denied:

Striking of a party's pleading is a "drastic remedy." and is only warranted where there has been a clear showing that the failure to comply with discovery demands was willful and contumacious. American Tr. Ins. Co. v. Hackensack Surgery Ctr., LLC, 248 AD3d 970, 971 (2d Dept. 2026); Kakuriev v. Baffone Transp., Inc., 249 AD3d 856, 858 (2d Dept. 2026); Henry v Datson, 140 AD3d 1120, 1122 (2d Dept 2016). "Willful and contumacious conduct may be inferred from repeated failures to comply with court-ordered discovery coupled with inadequate explanations." 255 Butler Assoc., LLC v. 255 Butler, LLC, 208 AD3d 831, 834 (2d Dept. 2022). A party cannot be "compelled to produce records, documents, or information that were not in [its] possession, or did not exist." Deer Park Assoc. v Town of Babylon, 121 AD3d 738, 740 (2d Dept 2014).

Defendant served interrogatories and document demands seeking information concerning plaintiff's claimed property. Plaintiff responded that he had lost five bags containing shoes, pants, shirts, sweaters, coats, sneakers and T-shirts, and represented to the court that he possesses no further information concerning the individual items. This court credits that representation. Defendant has not established that plaintiff possesses additional responsive information that he has willfully withheld. Significantly, defendant's own submissions establish that its employees emptied the contents of plaintiff's five lockers, placed the property into five full 30-gallon trash bags, photographed the bags, stored them in defendant's supply room until May 29, 2025 and then discarded them. Defendant's club manager further identified the contents as including clothing, children's toys and other items. Defendant therefore had an opportunity to take an inventory of the lost items before discarding them. Defendant's own submissions establish that it possessed and handled the property before disposing of it.¹ Under these circumstances, defendant has not shown that plaintiff's inability to provide a more detailed inventory resulted from willful and contumacious noncompliance, and does not warrant the drastic remedy of striking the complaint.

II. Summary Judgment in Favor of Defendant is Denied:

In determining a summary judgment motion, "facts must be viewed in the light most favorable to the non-moving party." Vega v Restani Constr. Corp., 18 NY3d 499, 503, 965 N.E.2d 240, 942 N.Y.S.2d 13 (2012). Summary judgment is a "drastic remedy," and may only be granted when the movant has "tendered sufficient evidence to demonstrate the absence of any material issues of fact." Id.; Alvarez v Prospect Hosp., 68 NY2d 320, 324, 501 N.E.2d 572, 508 N.Y.S.2d 923 (1986). "Where the moving party fails to meet this burden, summary judgment cannot be granted, and the non-moving party bears no burden to otherwise persuade the court against summary judgment." William J. Jenack Estate Appraisers & Auctioneers, Inc. v. Rabizadeh, 22 NY3d 470, 475, 982 N.Y.S.2d 813, 5 N.E.3d 976 (2013). The court may not assess credibility or weigh conflicting evidence on motions for summary judgment; "issue finding, rather than issue determination, is the court's proper function on such a motion." Chimbo v Bolivar, 142 AD3d 944, 945, 37 N.Y.S.3d 339 (2d Dept. 2016). Defendant cannot satisfy that burden merely by identifying deficiencies in plaintiff's proof, but must affirmatively demonstrate the merit of its defense. UB Distribs., LLC v S.K.I. Wholesale Beer Corp., 161 AD3d 1027, 1028 (2d Dept 2018). Thus, a motion for summary judgment "should not be granted where the facts are in dispute, where conflicting inferences may be drawn from the evidence, or where there are issues of credibility." Lustig v. Brown, 248 AD3d 1223, 1224, 253 N.Y.S.3d 763 (2d Dept. 2026).

Defendant principally relies upon paragraphs 13 and 14 of plaintiff's membership agreement. Paragraph 13 provides that management "will remove any article left in a locker overnight" and states that Blink is not responsible for lost or stolen property or articles left in lockers. Paragraph 14 similarly provides that Blink shall not be liable for loss, theft or damage to members' personal property.

However, General Obligations Law ("GOL") 5-326 renders void an agreement between a fee-charging gymnasium and its user insofar as the agreement exempts the operator from liability for damages resulting from its own negligence. GOL 5-326 "protects consumers from the effect of form releases printed on membership applications and similar documents when such releases are offered in connection with the use of a 'place of amusement or recreation' for which a fee is paid." Leftow v. Kutsher's Country Club Corp., 270 AD2d 233, 234 (2d Dept. 2000). Since plaintiff paid for a membership permitting use of defendant's fitness facility, defendant cannot rely upon the agreement to exempt itself from liability for its own negligence. Furthermore, public policy "forbids a party's attempt to escape liability, through a contractual clause, for damages occasioned by 'grossly negligent conduct.' " Matter of Part 60 Put-Back Litig., 36 NY3d 342, 352 (2020); Colnaghi, USA. v. Jewelers Protection Servs., Ltd., 81 NY2d 821, 823-824 (1993).

Nor does the agreement establish defendant's entitlement to judgment on the facts presented. Paragraph 13 authorizes defendant to remove property left in a locker overnight. It does not authorize defendant to discard or destroy a member's property. In Board of Managers of Soho International Arts Condominium v City of New York,2005 U.S. Dist. LEXIS 9139, *10-11 (S.D.NY 2005), the court specifically distinguished "removal" from "destruction" "Remove" was defined as "to move from a position occupied . . to convey from one place to another." while the word "destroy" was defined as "to tear down or break up." Id. The court further explained: "the definition of 'remove' implies that the object being removed has retained its physical integrity; a 'destroyed' object clearly has not." Id. Thus, a provision permitting Blink to remove belongings from a locker cannot reasonably be read as authorizing Blink to discard or destroy those belongings.

Furthermore, in Glass v. ll'iener, 104 AD2d 967 , 968 (2d Dept. 1984), the court held: "A landlord has no absolute right to retain or destroy personal property belonging to a tenant. Even where a tenant is legally dispossessed, the landlord's rights extend only to the real property. He acquires no concomitant right to use or retain the tenant's personal property." That principle supports the conclusion that authority over the premises or locker did not confer authority to destroy the property found there.

The bailment principles relied upon by defendant do not require a different result. A bailment requires that the owner relinquish exclusive possession and control of the property to another. Hutton v Public Stor. Mgt., Inc., 177 Misc 2d 540, 541 (App Term, 2d Dept 1998). Thus, to the extent that plaintiff stored property in a locker secured by his own lock before it was removed and discarded, no bailment was created. However, the circumstances materially changed after defendant terminated plaintiff's membership and retained possession of his property while allowing him seven days to retrieve it. At that point, defendant had possession and control of the property. Where property is transferred "without compensation, profit or benefit," the resulting relationship constitutes a "gratuitous bailment." Reed v Cornell Univ., 138 AD3d 816, 817 (2d Dept. 2016). "In a gratuitous bailment, the bailee is only liable to the bailor for the bailee's gross negligence." Id. Moreover, failure to return bailed property establishes a prima facie case of gross negligence requiring the bailee to come forward with an explanation. Bah v. Michael's Stores, Inc., 2026 U.S. Dist. LEXIS 202596, *11 (SDNY 2026); Voorhis v. Consolidated Rail Corp., 60 NY2d 878, 879 (1983); Reed, supra, 138 AD3d at 817. Here, defendant does not contend that the property was accidentally lost or stolen. It acknowledges that it intentionally discarded the property after retaining it for eight days.

Defendant's explanation establishes what happened to the property, but does not establish, as a matter of law, that defendant was authorized to dispose of it. The membership agreement permits removal of property left overnight but does not expressly confer a right to destroy or discard that property after removal. Defendant's unilateral notification that it would dispose of the property after seven days does not, on this record, establish as a matter of law that plaintiff agreed to relinquish ownership in his property or to discard it in signing the membership agreement. In light of the above, defendant has failed to establish its prima facie entitlement to judgment as a matter of law. This court therefore need not determine whether plaintiff's opposing proof is sufficient to raise a triable issue of fact.

CONCLUSION

Accordingly, defendant's motion to strike the complaint pursuant to CPLR 3126 or, alternatively, for summary judgment dismissing the complaint pursuant to CPLR 3212 is denied in its entirety. This constitutes the decision and order of the court.

Dated: September 16, 2026

Hon. Tehilah H. Berman

Judge of the Civil Court, Kings County

FOOTNOTES

1.   This court does not determine whether defendant's disposal of the property warrants a spoliation sanction, as no such relief was requested. See, Wetzler v. Slslers of Charity Hosp.,17 AD3d 1088, 1089 (4th Dept. 2005) (trial court erred on granting a directed verdict sua sponte based upon spoliation of evidence where no prior spoliation motion had been made). Although ptaintiff is self-represented and could not reasonably be expected to identifu the evidentiary issue by its formal legal designation, the present record is insufllcient to impose a spoliation sanction. Defendant was not placed on notice that such relief was under consideration, and the parties have not addressed whether defendant reasonably anticipated litigation when the property was discarded, the resulting prejudice, or the appropriate remedy. This court therefore does not determine whether a spoliation sanction is warranted.

Tehilah H. Berman, J.