Pierce v. Lucille Roberts Womens Fitness ( 2018 )

Pierce v Lucille Roberts Womens Fitness (2018 NY Slip Op 04433)

Pierce v Lucille Roberts Womens Fitness

2018 NY Slip Op 04433

Decided on June 14, 2018

Appellate Division, First Department

Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.

This opinion is uncorrected and subject to revision before publication in the Official Reports.

Decided on June 14, 2018
Friedman, J.P., Tom, Kapnick, Kahn, Kern, JJ.

6538 23258/13

[*1]Phyllis Pierce, Plaintiff-Appellant,

v

Lucille Roberts Womens Fitness, doing business as Lucille Roberts, Defendant-Respondent.

Appell & Parrinelli, New York (John J. Appell of counsel), for appellant.

Marshall, Conway & Bradley, P.C., New York (Lauren Turkel of counsel), for respondent.

Order, Supreme Court, Bronx County (Fernando Tapia, J.), entered on or about October 27, 2017, which granted defendant's motion for summary judgment dismissing the complaint, unanimously affirmed, without costs.

The negligence claim is barred as a matter of law by the doctrine of primary assumption of the risk (see Morgan v State of New York, 90 NY2d 471, 484 [1997]; see also Ingram v Life Fitness, 140 AD3d 628, 628-29 [1st Dept 2016]). The record establishes that plaintiff assumed the obvious and inherent risks attendant to the use of treadmills, and she failed to raise a triable issue of fact as to whether defendant "concealed or unreasonably increased [those] risks" (Morgan, 90 NY2d at 485).

Further, the record establishes that the sole proximate cause of the accident was plaintiff, who decided to suddenly stop walking and attempt to turn on her iPod and connect her headphones while she was on the moving treadmill.

THIS CONSTITUTES THE DECISION AND ORDER

OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.

ENTERED: JUNE 14, 2018

CLERK