Upon the following papers read on this motion for summary judgment: Notice of Motion and supporting papers by defendant, dated February 2, 2018; Order to Show Cause by plaintiff, dated September 12, 2018 and supporting papers; and Affirmation in Opposition by defendant, dated October 17, 2018; it is,ORDERED that the motion by defendants Bally Total Fitness Corp., Bally Total Fitness of Greater New York, Bally’s Fitness and LA Fitness International for summary judgment dismissing the complaint (mot. seq. # 001) is denied; and it is furtherORDERED that the motion by plaintiff, brought on by order to show cause, for relief from its default in filing affidavit(s) in opposition to defendants’ motion and for leave to file such opposing papers is denied as moot.Plaintiff Anthony Salerno commenced this action for injuries allegedly sustained on May 4, 2010, when he fell while exercising on a treadmill at a gym located in Lake Grove and owned and operated by defendants Bally Fitness Corporation, Bally Total Fitness of Greater New York, Bally’s Fitness and LA Fitness International, LLC (hereinafter collectively referred to as Bally Fitness). The complaint alleges that Bally Fitness was negligent in failing to properly maintain, inspect and supervise the treadmill and fitness equipment located in the gym. By his bill of particulars, plaintiff alleges that Bally Fitness was negligent, among other things, in failing to maintain and repair the treadmill, and in failing to warn that the treadmill was out of repair.Bally Fitness now moves for summary judgment dismissing the complaint, arguing that plaintiff cannot identify the exact treadmill that allegedly caused his injury, that there is no credible evidence it failed to maintain its treadmills in a reasonably safe condition or that plaintiff’s alleged accident was proximately caused by the machine, that there is no evidence that a defective or dangerous condition existed on the premises at the time of or prior to the accident, and that it had no notice of the alleged dangerous condition. In support of its motion, Bally Fitness submits copies of the pleadings, transcripts of the parties’ deposition testimony and photographs of the premises. Plaintiff did not submit any papers in opposition to the motion prior to the return date1.At his deposition, plaintiff testified that on the incident date he went to the Bally Fitness gym located at 22 Middle Country Road, Lake Grove, New York to work out. He testified that he used that facility an average of three times a week, and that he used its treadmills approximately two times a week. Plaintiff testified that there were about 15 or 20 treadmills located within the gym. He testified that on the accident date he was on the treadmill closest to the water machine for approximately six minutes and had reached a speed of 6 miles per hour when the machine wobbled and the belt stopped suddenly as he was running. He testified that his foot jammed and “rolled,” and he fell down to one knee. Plaintiff testified that leg went numb, and one of the trainers, whom he identified by name and who had seen what had happened, came over and helped him down to the front desk, where he reported the incident to the manager. Plaintiff testified that he did not file a further accident or incident report. He testified that when he went to the gym either one or two days after the accident, there was an “out of order” tag on the machine, and that he had never seen a sign on that particular machine in the past. Plaintiff testified that he took photographs of the machines at that time; however, none of the produced photographs depict a treadmill with an out of order tag attached.Uilton Dossantos testified at his deposition that he was the district supervisor for Bally Total Fitness, and on the incident date he held the position of Maintenance Supervisor for the region’s Bally clubs. He testified that he oversaw the day-to-day maintenance duties, scheduling and supervision of the maintenance technicians for each location, and that a preventative maintenance program was in place for each piece of equipment in their facilities. He testified that he was never made aware of plaintiff’s alleged accident until he was requested to appear at the deposition. Dossantos testified that each of the treadmills maintained at the Bally Fitness club contained three identifying numbers, and that the treadmills were inspected monthly or as needed. He testified that if a machine needed repair, it would be registered in the repair log by its specific identification numbers. No maintenance, inspection or repair logs or records were marked as exhibits at Mr. Dossantos’s deposition nor have any been provided in support of the current motion2.On a motion for summary judgment, the movant bears the initial burden of establishing entitlement to judgment as a matter of law (see Winegrad v. New York Univ. Med. Ctr., 64 NY2d 851, 487 NYS2d 316 [1985]). If the movant meets this burden, then burden shifts to the opposing party, who must demonstrate evidence of the existence of a material issue of fact (see Alvarez v. Prospect Hosp., 68 NY2d 320, 508 NYS2d 923 [1986]; Zuckerman v. City of New York, 49 NY2d 557, 427 NYS2d 595 [1980]). The movant’s failure to make this prima facie showing requires denial of the motion “regardless of the sufficiency of the opposing papers” (Blackwell v. Mikevin Mgt. III, LLC, 88 AD3d 836, 837 [2d Dept 2011], citing Winegrad, supra).A defendant moving for summary judgment in a negligence case has the initial burden of making a prima facie showing that it neither created the alleged hazardous or defective condition nor had actual or constructive notice of the condition for a sufficient length of time to discover and remedy it (see Petersel v. Good Samaritan Hosp. of Suffern, N.Y., 99 AD3d 880, 951 NYS2d 917 [2d Dept 2012]; Johnson v. Culinary Inst. of Am., 95 AD3d 1077, 944 NYS2d 307 [2d Dept 2012]; Amendola v. City of New York, 89 AD3d 775, 932 NYS2d 172 [2d Dept 2011]). The defendant must do so affirmatively however; thus, “[a] movant fails to satisfy its prima facie burden by merely pointing out gaps in the plaintiff’s case” (Blackwell v. Mikevin Mgt. III, LLC, supra, 88 AD3d at 837 [2d Dept 2011], citing Englington Med., P.C. v. Motor Veh. Acc. Indem. Corp., 81 AD3d 223 [2d 2011]; Shafi v. Motta, 73 AD3d 729, 730 [2d 2010]; Doe v. Orange-Ulster Bd. of Coop. Educ. Servs., 4 AD3d 387, 388 [2004]).Here, the defendants predicate their motion on their contention that plaintiff cannot identify the treadmill he was using at the time of the accident and, therefore, “cannot prove that there was any issue with the subject treadmill, or that defendant Bally had any notice, actual or constructive, of any issue or defect pertaining to the treadmill plaintiff allegedly was using on the date of his accident” or that defendant Bally created the allegedly dangerous condition. However, this both misconceives the defendants’ affirmative burden on the motion (see, e.g., Blackwell v. Mikevin Mgt. III, LLC, supra, 88 AD3d at 837) and misconstrues the substance of plaintiff’s testimony, that his injury was caused by the treadmill’s spontaneously stopping abruptly, that one of the trainers employed by the gym saw what had happened and came to his aid, and that he promptly reported the accident and its cause to the manager on duty at the gym. In support of their motion, however, defendants have provided no inspection, maintenance, repair or other records for the treadmill plaintiff was using at the time of his accident or, for that matter, for any of the treadmills that were in use at the Lake Grove gym at that time.In Guerra v. Howard Beach Fitness Ctr., Inc., 32 Misc 3d 1214(A) [Sup Ct Queens County 2011], the plaintiff claimed that she had been injured when the “whole mat came off the roller and shifted” on the treadmill she was using at the defendant health club, causing her, first, to fall on her right knee and then, because the machine continued running and she could not reach any of the controls to stop it, she was thrown from it and got wedged between two pieces of equipment while the belt, still running, was “eating the hell out of my leg.” Among other things, she alleged that the defendant was negligent in “failing to maintain the treadmill in a reasonably safe and proper condition” and in permitting it to be used in “a broken, defective, dangerous and hazardous condition.” The defendant’s motion for summary judgment, made on a variety of grounds, was denied. With respect to the defendant’s contention that it was entitled to summary judgment because the plaintiff had failed to provide evidence that the defendant had “actual or constructive notice of a defect in the specific treadmill in question” and because there had been no prior complaints concerning that treadmill, the court held as follows: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 N.Y. 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 N.Y.S.2d 534 [2d Dept.2011]; Colon v. Bet Torah, Inc., 66 AD3d 731 [2d Dept.2009]; cf. Lee v. Bethel First Pentecostal Church of Am., Inc., 304 A.D.2d 798 [2d Dept.2003] ).(Guerra v. Howard Beach Fitness Ctr., Inc., 32 Misc 3d 1214(A) [Sup Ct Queens County 2011]; see generally Malouf v. Equinox Holdings, Inc., 113 AD3d 422 [1st Dept 2014] (in action in which plaintiff alleged that she was injured when she fell off a treadmill at defendant’s gym, trial court did not abuse its discretion in striking third-party complaint and “barring [the defendant] from arguing at trial that the subject treadmill was operating properly or was free from defects,” where defendant “failed to take affirmative steps to preserve the treadmill” and “[a]ll paperwork concerning the treadmill was also missing.”)On the record presented here, as in Guerra v. Howard Beach Fitness Ctr., Inc., supra, the defendants have failed to establish that they are entitled prima facie to judgment in their favor as a matter of law. Their motion is, therefore, denied. In light of this determination, plaintiff’s separate motion, brought on by order to show cause, for relief from the default in filing timely opposing papers and for additional time to file such papers, is denied as moot.This foregoing constitutes the decision and order of the Court.Dated:__FINAL DISPOSITION __XX____ NON-FINAL DISPOSITION
