THOMAS v. BROADWAY PILATES LTD (2008)

Judgment, Supreme Court, New York County (Carol R. Edmead, J.), entered May 7, 2007, dismissing the complaint, bringing up for review an order, same court and Justice, entered April 10, 2007, which granted defendant's motion for summary judgment, unanimously affirmed, without costs.   Appeal from the aforementioned order unanimously dismissed, without costs, as subsumed in the appeal from the judgment.

 Defendant met its burden of establishing entitlement to judgment, and plaintiff failed to raise a triable issue of fact in opposition (Papadopoulos v. Gardner's Village, 198 A.D.2d 216, 604 N.Y.S.2d 570 [1993] ).   By voluntarily participating in a fitness and exercise program at defendant's studio for five years before her accident, including use of the equipment on which she was injured, plaintiff consented to and was aware of the risks commonly associated with this activity (Morgan v. State of New York, 90 N.Y.2d 471, 662 N.Y.S.2d 421, 685 N.E.2d 202 [1997] ).   Defendant's loss of plaintiff's client index card was not crucial to her case, so spoliation sanctions were not appropriate (Bach v. City of New York, 33 A.D.3d 544, 827 N.Y.S.2d 2 [2006] ).