This is an action for damages for personal injuries sustained by the plaintiff, Geraldine Guerra, when she fell from a treadmill while exercising at Gold's Gym located at 157-05 Crossbay Boulevard, Howard Beach, New York on March 18, 2007.

The plaintiff commenced an action by the filing of a summons and verified complaint in Kings County on March 21, 2008. Issue was joined by service of defendant Howard Beach Fitness Center, Inc.'s verified answer on April 30, 2008. Defendant Gold's Gym has not filed an answer and has not appeared in this action. Defendant's motion to change the venue of this matter from Kings County to Queens County was granted on consent by Justice Francois Rivera by order dated July 28, 2008.

In her verified bill of particulars dated July 23, 2008, the plaintiff contends that the defendant was negligent, inter alia, in permitting the treadmill to be utilized in a broken, defective, dangerous and hazardous condition; by failing to maintain the treadmill in a reasonably safe and proper condition and in failing to take suitable and proper precautions for the safety of persons using the exercise equipment. The plaintiff specifically claims that she was injured as a result of the treadmill not being equipped with a kill' switch which would have stopped the moving tread when the plaintiff removed her hand from the handle/grip of the machine. Plaintiff claims that "subsequent to her removing her hand from the handle/grip of the machine the tread continued to move at a high rate of speed which caused the plaintiff's feet to slide out from under her, causing her to fall." As a result of the accident, the plaintiff alleged that she sustained a tear of the ACL of the right knee which required arthroscopic ACL reconstruction and a torn hamstring of the left leg.

Examinations before trial of the plaintiff, Geraldine Guerra and of Michael Toledo, a supervisor employed by the defendant were taken on August 20, 2010.

The plaintiff, age 56, a receptionist/secretary at a medical office, agreed that at the time she became a member of Gold's Gym on February 26, 2007 she signed a contract which contained language stating that the user of the gym equipment assumes the risk of injury. Plaintiff testified she did not read the contract prior to signing it. The plaintiff also testified that prior to signing the contract she was never shown any of the gym equipment. She stated that prior to joining the gym she had never used a treadmill before. After she joined, she went to the gym two or three times a week and utilized the bicycle and treadmill equipment. On her second or third visit to the gym she used the [*2]treadmill for the first time. With regard to that occasion she testified that, "I put it on basic. I asked for help. I was told that they didn't have time; if I wanted to get a trainer, that I would have to pay. I didn't have the money. Therefore, I did basic on the treadmill and went slowly with it." She stated that she asked the people at the front desk for help two or three different times and she was consistently told that she needed to get a personal trainer. She stated that because she did not have a trainer. "I just hit basic and went very slow. And that's what I did." She testified that if she needed to slow the treadmill down she would slow it down and step on the sides and wait until it stopped. She stated that the treadmills she used had an on/off power switch and a switch to control the speed. She stated that she only walked on the treadmill and that she did not know how to adjust the incline. When asked prior to the date of the accident how she would stop it she replied: "I believe I hit the button where it would go down to 2, you know, from 3, 2, 1, go all the way down and then it would stop. I would go on to the sides of the panel and then step off of the machine to the foot rails on the side...I would slow the machine down, I would never just exit the machine." She said she would stop the treadmill, put her feet on the sides and exit the machine. The plaintiff stated that there was a stop button on top of the control panel and one stop button on the back of the machine on the handrail but she never used the stop button. She testified that on certain occasions prior to the accident when she went to use the treadmill she noticed that the tread was shifted off of the track. She stated that she observed two of her girlfriends notify gym personnel that the mat was running crooked on the machine.

The plaintiff testified that on the date of the accident she went to the gym in the evening with her friend Mary. When she first went on the treadmill she put her feet on the sides and increased the numbers of the machine and slowly started to walk and if she needed to increase her pace she was able to do that. She began walking with her hands on the front rail and nothing clipped to her clothing. When asked what happened as she was walking on th treadmill she replied that after walking on the treadmill for about 10 minutes, "the whole mat came off the roller and shifted. I went down on my left knee while I was holding on in front of me. I couldn't reach up to press any button because I was holding on for dear life. I was trying to catch up with my right leg. I therefore did a split, had to let go of the machine, got thrown off of the treadmill, got wedged in between two pieces of equipment. The treadmill didn't stop. It kept going while it was eating the hell out of my leg." She reiterated that, "I fell on the right leg, I was trying to catch up with the left leg. When I did the split and then got thrown off of the machine the machine [*3]was still going and was continually eating my right leg." She stated that as she was walking the tread shifted and that she could not get to either of the stop buttons because she couldn't reach them after she fell on her right knee. The plaintiff stated that she knew it was the mat that slipped when she was on the treadmill because she felt it shift. In that regard she stated, "I felt the whole thing move. I felt the whole mat move. When I looked down it was over. It was over...I immediately felt it and went down and was holding on and was being pulled away from the treadmill, from the handle. I was getting thrown off."

Plaintiff stated that she injured her right knee and her left hamstring when her legs were split. After she fell, she told the gym employees that she lost her footing and tripped when the mat slid. When the plaintiff was shown the Gold's gym accident report regarding her incident, she agreed that there was no mention in the report that the tread came off the rollers, but rather, the report indicates that she lost her footing when she went to step off. Plaintiff testified that when the EMT's responded to the gym they placed her on a gurney and took her to Jamaica Hospital. After being released from the emergency room the same day, the plaintiff began treating with Orthopedic Care of Long Island for a tear of the interior cruciate ligament of the right knee and a sprained hamstring of the left leg.

Michael Toledo testified that on the date of the plaintiff's accident he was working as a supervisor at Howard Beach Fitness Center which is one of the franchises for Gold's Gym. He stated that he was working on the floor on the date of the plaintiff's accident. With respect to the accident report, Mr. Toledo stated that plaintiff's workout partner signed the report above the space which provides for the claimant's signature because the plaintiff was on the gurney at the time he prepared the report. He stated that he personally did not observe the accident but he obtained information from the plaintiff and from her friend, Mary. After the question which asks how the accident occurred, Mr. Toledo wrote, "was using treadmill and she lost her footing when she went to step off." In the portion which states "witnesses version of accident" he wrote, Geraldine lost her footing while using treadmill." He testified that the plaintiff never mentioned that the mat slipped. The incident report submitted by the defendant also indicates that the machine at the time, was in good working order. He testified that he called EMS immediately upon learning the plaintiff was injured. With respect to the treadmill in question, the witness identified the equipment as a Star Tac treadmill. He stated that the model used by the plaintiff had two stop buttons on the machine but did not have magnetic kill switch which is attached by a "leash" to the [*4]user. He stated that if someone were to fall off this machine without pressing either of the stop buttons, the machine would continue to operate.

With respect to maintenance of the exercise machines, Mr. Toledo was asked if there was a maintenance schedule for the machines on as-needed basis or as to some type of time-period basis. He stated, "I believe they were looked at least once a week. And then if something went wrong, of course, we fix it." When asked if he was certain there was a schedule he stated, "I'm not 100 percent sure." When asked again if maintenance was on an as-needed basis or something different he responded, "I don't know." He stated that if a member had an issue using a machine they could ask the "floor trainer" who would then show the member how to use a machine.

In support of the motion for summary judgment Mr. Toledo also supplied an "affidavit of merit" dated January 11, 2011, which states that "prior to March 18, 2007, no written or oral complaints were made to the defendant or its agents, servants, or employees, regarding the treadmill that Geraldine Guerra was allegedly using on that date." As part of the motion, the defendant also submits a surveillance video of the premises which defendant claims depicts plaintiff losing her footing prior to falling off of the machine.

In his affirmation in support of the motion defendant's attorney, Andrew L. Klauber, Esq. contends that the defendant is entitled to summary judgment as the plaintiff has failed to provide an evidence that the defendant had actual or constructive notice of a defective condition (citing Giulini v. Union Free School Dist. No. 1, 70 AD3d 632 [2d Dept. 2010][summary judgment granted to the defendant where the deposition testimony of the school district's grounds supervisor and facilities manager established that the school district had received no prior complaints regarding an alleged hole under the mulch in the playground where the plaintiff's daughter, purportedly fell]; Williams v SNS Realty of Long Is., Inc., 70 AD3d 1034 [2d Dept. 2010][the defendants met their burden of establishing their prima facie entitlement to judgment as a matter of law by demonstrating that they neither created nor had actual or constructive notice of the allegedly dangerous floor mat. Defendants testified that they had no knowledge of anyone previously tripping or falling on the mats, and that no one had ever made a complaint to them about the mats]).

Secondly, counsel contends that plaintiff assumed a known risk in her use of the treadmill as the risk of falling from the [*5]treadmill is a risk that is inherent in and arises out of the nature of participation in the recreational activity (citing Milea v. Our Lady of Miracles Roman Catholic Church, 290 AD2d 424 [2d Dept. 2002][when an individual voluntarily participates in a sport or recreational activity, he or she "consents to those commonly appreciated risks which are inherent in and arise out of the nature of the sport generally and flow from such participation"]; Wallach v. Am. Home Prods. Corp., 300 AD2d 576 [2d Dept. 2002][summary judgment awarded to a defendant where plaintiff fell from a treadmill holding that the plaintiff assumed the known, apparent, and/or reasonably foreseeable risks associated with running on a treadmill]). Counsel also claims that the plaintiff acknowledged that she assumed the risk of injury by signing a contract which states that the use of the facilities is undertaken by the member at their own risk.

Counsel further contends that despite the fact that the treadmill did not have a "kill switch" the treadmill in issue was safe as it had two stop buttons. Further the defendant claims that the plaintiff signed a contract containing a general waiver of liability clause which states that the gym would not be liable for injuries sustained by members, and as such, plaintiff agreed to release the defendant from liability for any injuries she may have sustained from her accident. Lastly, counsel contends that the complaint must be dismissed as the plaintiff has failed to join the manufacturer of the product as a necessary party. Defendant contends that as the bill of particulars states that the defendant was negligent for not providing a treadmill with a kill switch, the plaintiff should have joined the manufacturer of the treadmill as the gym did not manufacture or design the treadmill in question. Counsel contends that because plaintiff's argument that her injuries were caused by the treadmill's lack of a kill switch is essentially a products liability cause of action that the manufacturer of the treadmill is an indispensable party to the action.

In opposition to the defendant's motion, Henry W. Davoli, Esq. counsel for the plaintiff, annexes a copy of an affidavit from the plaintiff dated February 15, 2011 in which she states that when she joined Gold's Gym in February, 2007 she believed that they would have equipment suitable for a novice. She also stated she believed that she would receive training as to the use of the equipment but that the only way she could obtain training on the device was to sign up for personal training which she found to be too expensive. She also states that she fell when "the treadmill's tread moved erratically sideways or slipping on the rollers." She stated that since she could not reach the off switch "the treadmill took me to the back of the back of the [*6]machine and flung me to the rear of the machine." Plaintiff also states in her affidavit that she hit another machine when she fell off because she alleges that the machines were not properly spaced for safety. Plaintiff also states that if the equipment had contained a kill switch that would have automatically shut the machine off when she fell she would not have been injured. Further, the plaintiff claims that she did not sign the incident report and that she did not provide any information for the report. Contrary to the statements contained in the report she contends that she stumbled due to a loose tread and that she never told anyone that she was in the process of stepping off the machine as stated in the incident report. Plaintiff contends that the surveillance video submitted by defendant shows her falling down not stepping off the machine.

Plaintiff's counsel contends that summary judgment should not be granted as there are questions of fact as to whether the plaintiff fell because the defendant failed to properly maintain the treadmill whose tread slipped on its rollers causing the plaintiff to fall. Counsel also contends that there is a question of fact as to whether the gym was negligent in failing to procure a treadmill with a kill switch and for failing to have a training session for members in the operation of the treadmill. Counsel also contends that the incident report was not prepared with the assistance of the plaintiff who was being attended to by ambulance attendants at the time of its preparation and that the description in the report is totally inaccurate and that plaintiff herself did not sign the report.

Counsel also claims the manufacturer of the treadmill is not an indispensable party as there is no claim of defective design. Rather, plaintiff claims that the defendants were negligent in selecting a treadmill that did not have a kill switch which is a necessary safety device.

Lastly, counsel contends that the assumption of risk clause and the general waiver of liability clause contained in the contract have been found to be void on the ground that such waivers violate public policy and also violates GOL § 5-326 which states that agreements exempting gyms from liability for negligence are void and unenforceable.

Upon review and consideration of the defendant's motion, the plaintiff's affirmation in opposition and the defendant's reply thereto this court finds as follows:

The proponent of a summary judgment motion must tender evidentiary proof in admissible form eliminating any material [*7]issues of fact from the case. If the proponent succeeds, the burden shifts to the party opposing the motion, who then must show the existence of material issues of fact by producing evidentiary proof in admissible form, in support of his position (see Zuckerman v. City of New York, 49 NY2d 557[1980]).

Based upon the plaintiff's deposition testimony, it appears that the gravamen of the plaintiff's cause of action for negligence is that she was caused to fall off the treadmill because the tread shifted or slipped off the roller and that the defendant is liable for failing to ensure that the treadmill was properly, adequately and safely maintained. The defendant's motion for summary judgment is premised on the fact that the plaintiff failed to demonstrate, as a matter of law, that the defendant had actual or constructive notice of a defect in the specific treadmill in question. Counsel points to the deposition testimony of the plaintiff stating that she was not aware of any complaints regarding the specific treadmill in question and the affidavit submitted by Mr. Toledo stating that defendant never received any prior complaints regarding the treadmill in question. Counsel also contends that the plaintiff's testimony that her friends made complaints regarding the treadmills is hearsay and was not specific regarding which treadmills they complained about.

This Court finds that the defendant has failed to meet its prima facie burden of proving entitlement to judgment as a matter of law. The defendant failed to provide evidence sufficient to show that the specific treadmill in question had been inspected at any particular time prior to the plaintiff's accident so as to demonstrate the absence of prior actual or constructive notice (see Reyes v Arco Wentworth Mgt. Corp., 83 AD3d 47, 52-53 [2d Dept. 2011]). Here, the defendant's witness did not offer sufficient testimony as to specific dates of maintenance and safety checks and testified that he really did not know when the particular was last inspected. The defendant failed to submit maintenance or inspection records for the treadmill which allegedly caused plaintiff's accident and failed to produce an affidavit from an individual with personal knowledge regarding the condition of the treadmill in question upon a recent inspection (see e.g. Delanoy v JP Morgan Chase and Company, 2011 NY Slip Op 3202 [2d Dept 2011]). Therefore, absent evidence of when the machine was last inspected, the reasonableness of the inspection, or that an inspection would not have disclosed the defect, the defendant has failed to establish that it lacked constructive notice of the treadmill's allegedly defective or dangerous condition or that it was free of negligence with respect to it (see Oates v Iacovelli, 80 AD3d 1059 [3d Dept. 2011]; White v Village of Port Chester, 922 NYS2d 534 [2d Dept. [*8]2011]; Colon v Bet Torah, Inc., 66 AD3d 731 [2d Dept. 2009]; cf. Lee v. Bethel First Pentecostal Church of Am., Inc., 304 AD2d 798 [2d Dept. 2003]).

That branch of the defendant's motion for an order granting summary judgment and dismissing the plaintiff's complaint on the ground that the plaintiff voluntarily assumed a known risk is denied. "By engaging in a sport or recreational activity, a participant consents to those commonly appreciated risks which are inherent in and arise out of the nature of the sport generally and flow from such participation" (Morgan v State of New York, 90 NY2d 471 [1997]). However, a participant will not be deemed to have assumed concealed or unreasonably increased risks (see Miller v Holiday Val., Inc. 2011 NY Slip Op 5331 [2d Dept. 2011]; Cotty v Town of Southampton, 64 AD3d 25 [2d Dept. 2009]; Sisino v Island Motocross of NY, Inc., 41 AD3d 462 [2d Dept. 2007]; Lamey v Foley, 188 AD2d 157 [4th Dept. 1993]).

Here, the plaintiff contends that she fell due to the defective condition of the treadmill. Falling off of a treadmill due to a malfunctioning tread is not a commonly appreciated or foreseeable risk which is inherent in exercising on a treadmill (see Kaplan v. Lucille Roberts Health Clubs Inc., 63 AD3d 470 [1st Dept. 2009]; Corrigan v. Musclemakers Inc., 258 AD2d 861 [3d Dept. 1999]). Therefore, the defendant failed to make a prima facie showing that the allegedly increased risk of falling from a treadmill due to the malfunctioning of the tread on the roller is "an inherent risk of the sport as a matter of law for summary judgment purposes" Demelio v. Playmakers, Inc., 63 AD3d 777 [2d Dept. 2009] citing Siegel v State of New York, 90 NY2d 471[ 1997]).

That branch of the defendant's motion to dismiss the complaint pursuant to CPLR 3211 (a)(5) on the ground that the plaintiff signed a waiver releasing defendant from all liability for personal injuries is denied. The contract signed by the plaintiff purporting to release Gold's Gym from any liability for her injuries is unenforceable pursuant to General Obligations Law § 5-326. The "waiver of liability" clause is invalid pursuant to General Obligations Law § 5-326. "That statute protects consumers from the effect of form releases printed on membership applications and similar documents when such releases are offered in connection with the use of a 'place of amusement or recreation' for which a fee is paid" (Leftow v. Kutsher's Country Club Corp., 270 AD2d 233 [2d Dept. 2000]; also see Matter of Winston v Sharfstein, 65 AD3d 1053 [2d Dept. 2009]; Garnett v. Strike Holdings LLC, 64 AD3d 419 [1st Dept. 2009]). [*9]

That branch of the defendant's motion for an order dismissing the plaintiff's complaint pursuant to CPLR 3211(a)(10) for failure to join a necessary party is denied. Although the plaintiff claims that the defendant was negligent in not providing treadmills equipped with kill switches, this cause of action sounds in negligence rather than products liability. The plaintiff is not alleging that the treadmill was defectively designed or that the manufacturer bears any culpability for the plaintiff's accident, rather plaintiff alleges that the defendant is negligent in the selection and maintenance of the subject treadmill. Moreover, where, as here, complete relief may be accorded between the parties and the absent parties will not be inequitably affected by a judgment in the action, the absentees are not deemed to be necessary parties (see CPLR 1001[a]; see also Strough v Incorporated Village of West Hampton Dunes, 78 AD3d 1037 [2d Dept. 2010]; Matter of Figari v New York Telephone Co., 32 AD2d 434 [2d Dept. 1969]). Therefore, the manufacturer is not an indispensable party to this action and is not necessary for the current parties to obtain complete relief.

Dated: July 7, 2011

Long Island City, NY

______________________________

ROBERT J. MCDONALD

J.S.C.