KAPLAN v. LUCILLE ROBERTS HEALTH CLUBS INC (2009)

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

Anna Mazur KAPLAN, Plaintiff-Appellant, v. LUCILLE ROBERTS HEALTH CLUBS INC., etc. et al., Defendants-Respondents.

Decided: June 09, 2009

MAZZARELLI, J.P., SWEENY, DeGRASSE, FREEDMAN, ABDUS-SALAAM, JJ.

Jaroslawicz & Jaros, LLC, New York (David Jaroslawicz and David Tolchin of counsel), for appellant. Law Offices of Vincent P. Crisci, New York (Stephanie L. Robbins of counsel), for respondents.

Order, Supreme Court, New York County (Edward H. Lehner, J.), entered March 28, 2008, which granted defendant health club's motion for summary judgment dismissing the complaint, unanimously reversed, on the law, without costs, the motion denied and the complaint reinstated.

There are issues of fact as to whether, inter alia, plaintiff, a paying member at the club, was limited to choosing among defective step-aerobic boards supplied by the club for participation in a club-sponsored class, and whether defendants had notice that a fair number of those boards allegedly lacked stabilizing bottom grips. Factual issues exist as to whether the absence of these grips unreasonably increased the risk of use of the boards, whether this risk was apparent to plaintiff, and whether it proximately caused her injury (see e.g. Morgan v. State of New York, 90 N.Y.2d 471, 662 N.Y.S.2d 421, 685 N.E.2d 202 [1997] ).

The question of spoliation of evidence is reserved for the trial court's consideration.

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