BERRY v. BALLY TOTAL FITNESS CORPORATION (2000)

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

Doretta BERRY, respondent, v. BALLY TOTAL FITNESS CORPORATION, appellant.

Decided: May 08, 2000

GUY JAMES MANGANO, P.J., FRED T. SANTUCCI, GABRIEL M. KRAUSMAN, ANITA R. FLORIO and ROBERT W. SCHMIDT, JJ.

Gallet Dreyer & Berkey, LLP, New York, N.Y. (Jeffrey S. Harwin of counsel), for appellant. Eaton & Torrenzano, LLP, Brooklyn, N.Y. (Jay Torrenzano of counsel), for respondent.

In an action to recover damages for personal injuries, the defendant appeals from an order of the Supreme Court, Kings County (Barron, J.), dated October 20, 1999, which denied its motion for summary judgment dismissing the complaint.

ORDERED that the order is reversed, on the law, with costs, the motion is granted, and the complaint is dismissed.

The plaintiff was participating in a step-aerobics class at the defendant's fitness center when another participant in the class accidentally collided with her, causing her to fall and sustain injuries. By her voluntary participation in the class, the plaintiff consented to those commonly appreciated risks which were inherent in the activity and flowed from such participation (see generally, Morgan v. State of New York, 90 N.Y.2d 471, 662 N.Y.S.2d 421, 685 N.E.2d 202). Thus, the defendant was entitled to summary judgment (see, Gilman v. Molly Fox Studios, Inc., 225 A.D.2d 404, 640 N.Y.S.2d 3).

MEMORANDUM BY THE COURT.

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