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QUESTIONS OF FACT ABOUT THE APPLICABILITIY OF THE ASSUMPTION OF THE RISK DEFENSE AND THE VALIDITY OF THE RELEASE UNDER THE GENERAL OBLIGATIONS LAW PRECLUDED SUMMARY JUDGMENT IN FAVOR OF DEFENDANT FITNESS CENTER; ALLEGEDLY, PLAINTIFF WAS INJURED WHEN THE TRAINER INSTRUCTED HIM TO ATTEMPT A BALANCING EXERCISE (SECOND DEPT).

The Second Department, reversing Supreme Court, determined there were question of fact about whether the defendant fitness center could assert the assumption of the risk defense, or whether the released executed by plaintiff was valid pursuant to the General Obligations Law:

The defendant failed to establish … the plaintiff assumed the risk of injury when he unsuccessfully attempted the balancing exercise. The deposition testimony … raises questions of fact as to whether the trainer exposed the plaintiff to an unassumed risk. Specifically, the trainer allegedly encouraged the plaintiff to attempt the exercise after he expressed that he could not perform it, by allegedly offering verbal reassurances such as “I’m right here,” which the plaintiff mistakenly believed meant that the trainer would catch him or stabilize him if he began to fall … .

The defendant also failed to establish … the plaintiff’s claims are barred by the release the plaintiff executed. The defendant failed to demonstrate the inapplicability of General Obligations Law § 5-326, which would render the release void, as the defendant’s evidence did not establish as a matter of law that its facility was not a “gymnasium” within the meaning of that statute … . Haggerty v Northern Dutchess Hosp., 2021 NY Slip Op 06162, Second Dept 11-10-21

 

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ALTHOUGH THE ISSUES ON APPEAL COULD HAVE BEEN RAISED IN AN APPEAL WHICH WAS... THE AIDING AND ABETTING FRAUD AND JUDICIARY LAW CAUSES OF ACTION WERE PRECLUDED...