GUINS v. STREB INC (2021)

The following papers numbered _ to _ were read on these motions (Seq. No. 2) noticed on _ and duly submitted as No. on the Motion Calendar of _

Sequence No. 1 Doc. Nos.

Notice of Motion — Exhibits and Affidavits Annexed 46-59

Cross Motion — Exhibits and Affidavits Annexed

Answering Affidavit and Exhibits, Memorandum of Law 64

Reply Affidavit 65

Upon the foregoing papers, the motion listed above is decided in accordance with the annexed decision and order.

Upon the foregoing papers, the motion of the defendant Streb, Inc. (hereinafter, “Streb”) to reargue a prior motion determined by this Court, and, pursuant to CPLR 3025(b), to amend defendant's answer to add the affirmative defense of waiver, is decided as follows.

On April 2, 2018, Shana Guins was rendered quadriplegic when she was injured during an “Intro to Acrobatics” class at defendant Streb's gym while attempting to perform a forward flip (also known as a dive roll) from a mini-trampoline at the direction of a Streb employee. On the prior motion, defendant argued that plaintiff's injury was an unfortunate accident, which was part of the foreseeable risks involved in acrobatics classes, and was not caused by any negligence on the part of the defendant.

In opposition, plaintiff argued that a dive roll is not appropriate for beginners, and that defendant failed to train plaintiff to safely perform a dive roll from a mini-trampoline to a lower surface. Plaintiff also argued that the affirmative defense of release or waiver, based upon a written waiver signed by the plaintiff, was waived as it was not raised in a pre-answer motion to dismiss or in a responsive pleading.

Plaintiff argued that by failing to assert waiver and release as an affirmative defense, the defendant did not give notice to the plaintiff of the defense, and therefore the plaintiff was not afforded an opportunity to conduct discovery on this issue, resulting in prejudice.

Citing Horst v Brown (72 AD3d 434, 436, 900 N.Y.S.2d 13, 15 [1st Dept. 2010]), and noting that as stated in that case, “The threshold inquiry is whether in considering the unpleaded defense, the opponent of the defense is prejudiced thereby,” this Court noted that the defendant failed to counter the plaintiff's argument that consideration of the defense at this juncture is prejudicial. Accordingly, the Court granted that part of the cross-motion to dismiss the unpleaded defense to the extent of holding that defendant was barred from raising the defense of waiver at trial.

Defendant now argues that this Court “failed to take into consideration that the defense produced the waiver in discovery, presented the waiver to the plaintiff at her deposition and the defense's Motion-In-Chief was based in part on the waiver.” The Court was obviously aware of the defense as it considered the issue of waivers and public policy in depth. Rather, as the defendant failed to articulate any argument of any kind as to the absence of prejudice despite the plaintiff's argument, the Court declined to consider arguments which the defendant failed to make. It is counsel's duty, not the Court's, to make arguments and raise issues for determination.

That having been said, the defendant has now clearly articulated the facts and the arguments, and although the plaintiff stated that plaintiff would have pursued discovery on this issue, plaintiff now has not stated what discovery would have been undertaken, nor how there was prejudice. It is now clear to the Court that there is no prejudice for the reasons stated by the defendant. (Sheridan v. Very, Ltd., 56 AD3d 305, 306, 867 N.Y.S.2d 88 [1st Dept. 2008] [motion court providently exercised its discretion in granting reargument and reinstating the complaint after plaintiff clarified facts relating to the extent of her compliance with discovery].) Indeed, “every court retains continuing jurisdiction to reconsider its [own] prior interlocutory orders during the pendency of the action” (Liss v Trans Auto Sys., 68 NY2d 15, 20, 496 NE2d 851, 505 NYS2d 831 [1986]), and despite the failure of the defendant to properly argue the issue of prejudice, it is clear the facts do not support plaintiff's contention that there has been prejudice. Should any discovery actually be required on this issue, plaintiff may make an appropriate motion which will dispel any possible prejudice.

Accordingly, it is hereby,

ORDERED that defendant's motion to reargue is granted, and it is further

ORDERED that the Decision and Order of September 14, 2020 is modified to the extent indicated herein, and it is

ORDERED that such part of the motion as sought leave to amend is granted, and the proposed Amended Answer as set forth in NYSCEF Document No. 48 is deemed filed and served, and shall stand as the Answer in this action, and it is

ORDERED that the affirmative defense of waiver shall be determined upon the trial of this action.

This constitutes the Decision and Order of the Court.

Adrian N. Armstrong, J.