From: Subject: Sugarman v Equinox Holdings, Inc. (2008 NY Slip Op 52530(U)) Date: Fri, 9 Jan 2009 18:04:53 -0500 MIME-Version: 1.0 Content-Type: text/html; charset="Windows-1252" Content-Transfer-Encoding: quoted-printable Content-Location: http://www.nycourts.gov/reporter/3dseries/2008/2008_52530.htm X-MimeOLE: Produced By Microsoft MimeOLE V6.00.2900.3198 Sugarman v Equinox Holdings, Inc. (2008 NY Slip Op = 52530(U)) [*1]=20
Sugarman v Equinox Holdings, = Inc.
2008 NY Slip Op 52530(U)
Decided on December 15, 2008
Supreme Court, New York County
Edmead, J.
Published by New York State = Law=20 Reporting Bureau pursuant to Judiciary Law =A7 = 431.
This opinion is uncorrected = and will=20 not be published in the printed Official=20 Reports.


Decided on = December=20 15, 2008
Supreme Court, New York County


Stuart Sugarman, Plaintiff, =

against

Equinox Holdings, Inc. d/b/a EQUINOX = FITNESS CLUB,=20 EQUINOX-85TH STREET INC., CHRISTOPHER CARTER, ABC CORPORATION = (same name=20 being fictitious and unknown) and JOHN DOE (said name being = fictitious and=20 unknown), Defendants.=20




108044/08=20

Carol R. Edmead, J.=20



Plaintiff Stuart Sugarman ("plaintiff") seeks damages for = battery,=20 emotional distress and negligence against Equinox Holdings, Inc., d/b/a = Equinox=20 Fitness Club, Equinox-85th Street Inc., (collectively, "defendants"),=20 Christopher Carter ("Mr. Carter"), ABC Corporation (same name being = fictitious=20 and unknown) and John Doe (said name being fictitious and unknown), = stemming=20 from incidents that allegedly took place at an Equinox health club on = August 15,=20 2007.=20

Defendants now move to dismiss plaintiff's complaint, pursuant to = CPLR=20 =A73211(a)(7), on the ground that plaintiff's complaint fails to state a = cause of=20 action against them.

Factual Background [FN1]

On August 15, 2007, plaintiff was participating in an indoor cycling = class=20 ("spin class") at the Equinox Health Club located at 205 East 85th = Street, New=20 York, NY (the "health club"). Plaintiff was cheering and shouting during = the=20 class "as is customary and acceptable in these classes," when Mr. Carter = became=20 annoyed at plaintiff. Mr. Carter started yelling and cursing at = plaintiff. At=20 one point during the class, Mr. Carter got off his bicycle and = complained to a=20 class instructor about plaintiff. After the instructor declined to = intervene,=20 Mr. Carter continued to yell and curse at plaintiff. Plaintiff continued = to=20 cheer and shout. Mr. Carter eventually got off his bike again and = "picked up the=20 front of plaintiff's cycle with plaintiff upon the unit and pushed him = into the=20 wall of the classroom leaving a hole in the sheetrock." Plaintiff = allegedly=20 suffered several injuries to his back and neck, as well as "extreme = humiliation=20 and embarrassment."=20

Subsequently, plaintiff filed criminal charges against Mr. Carter. = However,=20 on June 2, [*2]2008, a jury acquitted Mr. = Carter of=20 all charges.[FN2] On June 9, 2008, plaintiff filed = this action=20 against Mr. Carter and defendants.=20

Plaintiff's Complaint

Plaintiff contends that Mr. = Carter's=20 conduct at the health club amounted to common law battery and = negligence.=20 Plaintiff also contends that defendants were negligent because they:=20

(a) did not intercede to diffuse [sic] the argument = between=20 plaintiff and defendant Carter before it escalated in violence; (b) = did not=20 exercise proper care to remove defendant Carter from the instant spin = class=20 after defendant Carter exhibited violent behavior toward the plaintiff = prior=20 to his "Spin Rage"; (c) affirmatively prevented police and emergency = response=20 personnel from reaching the plaintiff who was injured at the time, and = was=20 otherwise negligent in the ownership, operation, supervision, = management,=20 control and/or maintenance of the premises; (d) negligently hired, = trained,=20 and retained its employees who were present prior to the "Spin Rage" = of Carter=20 and did not intercede in any fashion (plaintiff's complaint, paragraph = 56).


Plaintiff argues that defendants' negligence = was a=20 direct and proximate cause of his injuries and that as a result of = defendants'=20 negligence, plaintiff suffered physical and emotional injury.=20

Defendants' Motion

Defendants contend that = plaintiff=20 failed to state a cause of action against defendants, because defendants = owed no=20 duty to plaintiff. Defendants argue that a premises owner has no duty to = control=20 the conduct of third persons, such as Mr. Carter. Defendants further = ague that a=20 premises owner cannot be held liable for a criminal act unless such an = act is=20 foreseeable. A "claim of an assault between two patrons during a spin = class at a=20 high-end health club catering to Wall Street professionals" should not = be=20 considered foreseeable as a matter of law, defendants argue. There is no = history=20 of prior criminal conduct at the health club, defendants contend; nor = has there=20 been any reason to know of the likelihood of criminal conduct. Plaintiff = is=20 asking the court to impose a new duty on business owners, "namely, the = duty to=20 intervene in a physical altercation between two patrons lawfully on the=20 premises."

Defendants also deny that its employees acted = negligently.=20 Defendants characterize employees as "bystanders." There is no = generalized duty=20 for bystanders to intervene to prevent an altercation, defendants argue. = Even if=20 plaintiff could establish that defendants had a duty and defendants = breached=20 that duty, plaintiff is unable to show that defendants' breach was a = proximate=20 cause of plaintiff's injuries. "[B]reaking up a physical altercation is = not a=20 danger associated with conducting a spin' class at a health club," = defendants=20 argue.

Defendants contend that plaintiff concedes in his = complaint that=20 the incident was not foreseeable: plaintiff stated that he "has = participated in=20 hundreds of spin classes at the 85th Street Equinox without any = incidents or=20 complaints against him" (plaintiff's complaint, paragraph 21). Plaintiff = also=20 establishes that his cheering and shouting during the spin class was = "customary=20 and acceptable" (plaintiff's complaint, paragraph 25). Therefore, even = plaintiff=20 did not anticipate a physical attack after engaging in customary and = acceptable=20 behavior, defendants contend. Yet, [*3]plaintiff=20 argues that defendants should have foreseen such an attack. =

Defendants=20 also contend that plaintiff cannot state a cause of action for negligent = hiring,=20 training, and retention when there was no underlying negligence, = defendants=20 argue. Defendants had no notice of any "relevant tortious propensities = of=20 wrongdoing employee." Without any underlying duty on behalf of the = individual=20 Equinox employees to respond to the sudden and unforeseeable attack on=20 plaintiff, there can be no vicarious duty upon Equinox Defendants. = Further,=20 plaintiff's contentions that defendants engaged in negligent hiring and = training=20 are too conclusory to survive.

Further, plaintiff cannot state a = cause=20 of action for failure to summon or attempted interference with emergency = personnel, defendants contend. The complaint does not establish that = defendants=20 owed plaintiff a duty, either under statute or common law, to summon = emergency=20 personnel onto the premises. Furthermore, plaintiff does not allege that = his=20 injuries were in any way exacerbated by defendants' alleged attempts to=20 interfere with emergency personnel, or that he suffered any new injuries = as a=20 result of the alleged conduct.

Defendants also deny that they = failed to=20 show concern for plaintiff's health after the incident, or that they = interfered=20 with police or emergency responders who tried to assist plaintiff. = Defendants=20 also point out that under New York law there is no cause of action for = failing=20 to call emergency personnel.

Plaintiff's Opposition=20

Plaintiff contends that his complaint should be judged on = its face,=20 and that he does not need to provide any affidavits or proof at this = juncture.=20 Plaintiff also contends that defendants' motion to dismiss should be = denied=20 because the alleged attack on plaintiff was both foreseeable and = preventable.=20 The escalation of words between plaintiff and Mr. Carter put defendants = on=20 notice: "Any reasonable, prudent person in the room at that time knew or = should=20 have known that the assault was about to take place," plaintiff argues.=20 Plaintiff also reasserts his contention that defendants had a duty to = prevent=20 the alleged attack on him. "The duty of a possessor of property may = include . .=20 . protecting individuals against injury caused by the conduct of third = persons=20 on the premises," plaintiff argues. Mr. Carter's conduct was foreseeable = and=20 preventable and "discovery in this case will reveal that defendants had = a duty=20 to prevent the alleged attack on plaintiff.

Defendants' = Reply=20

In reply, defendants reassert that plaintiff has not alleged any = legally=20 cognizable duty owed by defendants, and point out that the cases to = which=20 plaintiff cites involved inadequate security, which is not at issue = here.=20 Defendants also contend that plaintiff's complaint does not indicate = that the=20 alleged assault was foreseeable; certain paragraphs are contained in the = cause=20 of action directed toward Mr. Carter and certain paragraphs directed at = the=20 defendants actually demonstrate that the defendants never undertook to = guarantee=20 plaintiff's safety in the midst of an altercation with another patron, = or to=20 otherwise act as plaintiff's bodyguard. The instructors merely "kept to = their=20 assigned roles," defendants argue.

Defendants also contend that = their=20 motion is not premature, as plaintiff implies. Defendants argue that = discovery=20 is not necessary when the facts as pleaded do not support a claim. = Defendants=20 point out that plaintiff's reply does not contest defendants' contention = that=20 defendants had no duty to call emergency responders. Plaintiff also = fails to=20 establish that [*4]defendants' alleged = interference=20 with emergency personnel exacerbated his injuries. Therefore, plaintiff = has=20 conceded that the complaint fails to state a cause of action arising out = of the=20 defendants' conduct with respect to emergency personnel, and that cause = of=20 action should be dismissed.

Analysis

Failure to State a Cause of Action

In determining a motion to dismiss, the court's role is ordinarily = limited to=20 determining whether the complaint states a cause of action (Frank v=20 DaimlerChrysler Corp., 292 AD2d 118, 741 NYS2d 9 [1st Dept 2002]). = The=20 standard on a motion to dismiss a pleading for failure to state a cause = of=20 action is not whether the party has artfully drafted the pleading, but = whether=20 deeming the pleading to allege whatever can be reasonably implied from = its=20 statements, a cause of action can be sustained (see Stendig, Inc. v = Thom Rock=20 Realty Co., 163 AD2d 46 [1st Dept 1990]; Leviton Manufacturing = Co., Inc.=20 v Blumberg, 242 AD2d 205 [1st Dept 1997] [on a motion for dismissal = for=20 failure to state a cause of action, the court must accept factual = allegations as=20 true]).=20

When considering a motion to dismiss for failure to state a cause of = action,=20 the pleadings must be liberally construed (see CPLR =A73026). On = a motion=20 to dismiss made pursuant to CPLR =A73211, the court must "accept the = facts as=20 alleged in the complaint as true, accord plaintiffs the benefit of every = possible favorable inference, and determine only whether the facts as = alleged=20 fit into any cognizable legal theory" (Nonnon v City of New York, 9 NY3d 825 [2007]; = Leon v=20 Martinez, 84 NY2d 83, 87-88 [1994]).=20

Negligence=20

To establish a negligence cause of action, a plaintiff must = demonstrate (1) a=20 duty of care owed to the plaintiff; (2) a breach of that duty; (3) that = the=20 breach is a proximate cause of plaintiff's injury or damages; and (4) = that the=20 plaintiff suffered a legally cognizable injury or damages (see Akins = v Glens=20 Falls City School District, 53 NY2d 325, 333 [1981]). The threshold = issue=20 here is whether defendants owed any duty to plaintiff to prevent Mr. = Carter from=20 allegedly assaulting plaintiff.=20

In examining plaintiff's complaint on its face, giving plaintiff the = benefit=20 of every possible favorable inference, and determining only whether the = facts as=20 alleged fit into any cognizable legal theory,[FN3] the Court finds that plaintiff has = failed to=20 establish a negligence cause of action against defendants.=20

First, plaintiff contends that defendants were negligent because they = "did=20 not intercede to diffuse [sic] the argument between plaintiff and = defendant Carter before it escalated in violence" and they "did not = exercise=20 proper care to remove defendant Carter from the instant spin class after = defendant Carter exhibited violent behavior toward the plaintiff prior = to his=20 Spin Rage'" (paragraph 56). It is well settled that a landowner is = liable for=20 the conduct of a third party only if the third party's conduct is = foreseeable.=20

While a landlord . . . has a common-law duty to take minimal = precautions to protect tenants and users of the facility from = foreseeable=20 harm, including the criminal conduct of third parties (see, Burgos v. = Aqueduct=20 Realty Corp., 92 NY2d 544, 548, 684 NYS2d 139, 706 NE2d 1163), this = duty=20 arises only when such party knows or has reason to know that [*5]there is a likelihood that third persons = may endanger=20 the safety of those lawfully on the premises [citations omitted], as = where the=20 landlord [or permittee] is aware of prior criminal activity on the = premises.'=20 . . . [T]he possessor of land, be he landowner or leaseholder, is not = an=20 insurer of the safety of those who use his premises'"

(Florman v City of New York, 293 AD2d 120, 124 [1st Dept = 2002])[FN4].

In the case of criminal = acts by third=20 parties, such as assault, the defendant landlord must have notice of the = third=20 party's criminal tendencies (Buckeridge v Broadie, 5 AD3d 298, 300 [1st = Dept 2004]=20 ["This record is devoid of any proof of prior criminal incidents at = defendant's=20 residence or at other neighborhood residences that would have placed = defendant=20 on notice that a robbery of this type would have been likely to happen. = The only=20 criminal activities of which defendant was aware were several robberies = in the=20 grocery store located next door. These incidents were insufficient to = place=20 defendant on notice that his home was vulnerable to this type of = criminal=20 activity"]). The court in Buckeridge also points out that such = notice can=20 be established "only by proof of a prior pattern of criminal behavior"=20 (id. at 299). For example, in the First Department case of = Piazza v=20 Regeis Care Center, L.L.C., the defendant nursing home was found not = liable=20 for injuries the plaintiff suffered from her brother during a visit to = their=20 mother at the nursing home (47 AD3d 551, 553 [1st Dept 2008]). The court = held=20 that the nursing home had no notice of the brother's violent tendencies, = even=20 though the plaintiff had sent the nursing home a letter informing the = nursing=20 home that her brother had problems. "Although plaintiff's brother may = have had a=20 history of drug abuse and verbal intimidation, there was no evidence = that he had=20 a history of physical violence toward plaintiff or their mother = prior to=20 the subject incident. Accordingly, defendant had no reason to anticipate = the=20 assault or duty to take steps to prevent contact between plaintiff and = her=20 brother" (id. at 553) (emphasis added). The Piazza = court=20 noted that the nursing home had alleged that "at no time during the = subject=20 30-minute visit did plaintiff ever express that she was uncomfortable = with her=20 brother's presence. Furthermore, defendant's Director of Building = Services=20 stated at his deposition that there were no complaints in the six-month = period=20 before the incident by visitors regarding other visitors" (id. at = 554-555).=20

Similarly, in the case at bar, plaintiff has failed to establish a = pattern of=20 criminal behavior by Mr. Carter or any other patrons at the health club = that=20 should have put defendants on notice. Plaintiff's complaint indicates = that he=20 had attended "hundreds of spin classes" at the health club with no = problems=20 (paragraph 21). Further, on the day of the alleged incident, plaintiff = at no=20 time indicated that he feared for his safety or was even intimidated by = Mr.=20 Carter's behavior. Plaintiff never complained to the class instructor = about Mr.=20 Carter's conduct. To the contrary, Mr. Carter is the one who approached = the=20 instructor to complain about plaintiff. Even after plaintiff witnessed = Mr.=20 Carter complaining to the instructor, plaintiff showed no sign of being=20 intimidated by Mr. Carter or fearing for his safety. Instead, plaintiff=20 testified that he kept on cheering and shouting, while Mr. Carter kept = on=20 cursing (paragraph 31). Plaintiff's own testimony fails to [*6]establish that even plaintiff foresaw the = alleged=20 assault by Mr. Carter.=20

Further, caselaw indicates that a third party's cursing or verbal = tirades are=20 not sufficient to put a premises owner on notice of a possible = physical=20 assault; there has to be some evidence of a pattern of physical = violence=20 (Piazza at 553). Other cases note the distinction. In = Millan v AMF Bowling Centers, Inc. (38 AD3d = 860, 861,=20 2007 NY Slip Op 02723, *2 [2007]), the plaintiff sued a bowling alley = for=20 negligence after the plaintiff was assaulted on the premises by another = patron.=20 The plaintiff argued that the defendant bowling alley breached a duty to = protect=20 the plaintiff because the assault was foreseeable: Prior to the assault, = the=20 assailant had laughed at the plaintiff. The court found the defendant = bowling=20 alley not liable for negligence:=20

The defendant demonstrated its prima facie = entitlement to=20 summary judgment based on, inter alia, the plaintiff's deposition = testimony=20 that, before the assault, his assailant had done nothing to him other = than=20 laugh at him, and the deposition testimony of the defendant's employee = that=20 before the assault, the assailant had not caused any problems and that = the=20 assault happened suddenly and without warning . . . The evidence = relied upon=20 by the plaintiff was in large part speculative and failed to = demonstrate that=20 the defendant's employees could reasonably have anticipated or = prevented the=20 assault of the plaintiff" (Millan at 861).

In Shank v Riker Restaurants Associates, Inc. (28 Misc 2d 835 = [1961]),=20 a restaurant was found liable for the injuries sustained by the = plaintiff after=20 the plaintiff was attacked by a third party in the restaurant. The court = noted=20 that before the assault, for 20 minutes, the third party created a = disturbance=20 in the restaurant, "berating customers in a vile manner." The third = party even=20 "drop-kicked" a glass "against the kitchen door causing water and pieces = of=20 glass to spray over a wide area" (id. at 836). The manager of the = restaurant called the police, but then canceled the call after the third = party=20 apologized and offered to pay for the glass. Later, the third party was = joined=20 by two others and started physically attacking customers, including the=20 plaintiff. In holding that the third party's violent acts were = foreseeable, the=20 court stated: "While it might be said that the manager had no duty to = eject=20 him solely because of his vile and abusive language, when he drop = kicked'=20 the glass of water it became abundantly clear that the hoodlum' = constituted a=20 source of physical danger to defendant's patrons"(id. at 837) = (emphasis=20 added). These cases indicate that New York courts look for evidence = of=20 actual physical violence that would put a premises owner on notice.=20

Here, plaintiff contends that defendants were aware that Mr. Carter = had=20 exhibited "violent behavior" toward plaintiff before the alleged = assault.=20 However, plaintiff does not describe any violent behavior. Plaintiff = contends=20 that "while plaintiff was cheering and shouting during the spin class, = defendant=20 Carter became annoyed and agitated and began yelling at = plaintiff=20 using profane language" (Complaint, paragraph 26) (emphasis=20 added). Plaintiff also contends that after 10 minutes, Mr. Carter's=20 "agitation and hostility escalated" (id. at paragraph 27). However, the=20 escalation was manifest only in Mr. Carter's getting off his bike and = not=20 approaching plaintiff, which could have been evidence of threatening = behavior, but approaching the instructor to ask the instructor to = silence=20 plaintiff (id. at paragraph 28). Plaintiff contends Mr. Carter "returned = to his=20 bike enraged and continued his verbal assault on = plaintiff" (id.=20 at 30, emphasis added). Plaintiff goes on to contend that Mr. Carter = "became=20 further enraged when plaintiff refused to [*7]stop cheering and shouting" (id. at paragraph = 31).=20 Nowhere in plaintiff's complaint does he establish that prior to the = alleged=20 assault, Mr. Carter acted violently or threatened to harm plaintiff = physically.=20 In fact, plaintiff maintains in his complaint that "prior to the events = that=20 arose in the instance [sic] spin class, plaintiff had never met or = spoken to=20 defendant Carter other than having seen defendant Carter on other = occasions at=20 the 85th Street Club" (id. at paragraph 24).=20

Caselaw indicates that New York courts have considered the heated = exchange of=20 words between patrons sufficient to put an owner of the premises on = notice. For=20 example, in a case decided just this year, the court denied a = restaurant's=20 motion for summary judgment on a negligence complaint, reserving for a = jury the=20 question of whether the defendant restaurant was on notice before the = plaintiff=20 patron was attacked by another patron. The court notes that "heated = words" were=20 exchanged before the incident (Barshay v 273 Brighton Beach Ave. Restaurant, = Inc., 20 Misc=20 3d 1116(A), NY Slip Op 51364(U) [2008] [table; text at 2008 WL = 2677535 (NY=20 Sup 2008)]). However, the exchange of heated words alone was not = dispositive of=20 notice.=20

Construing the facts in the instant case in the light most=20 favorable to the plaintiffs, an issue of fact exists as to whether the = incident was foreseeable or unexpected, given Barshay's claim that = [the=20 defendant restaurant] knew or should have known that patrons were=20 exchanging heated words and fighting in the restaurant = approximately 20=20 minutes prior to the alleged assault and that an employee was aware of = the=20 tension between these patrons" (id. at 4, citing Ash v Fern, = 295 AD2d=20 869, 870 [3d Dept 2002]) (emphasis = added).


While the=20 court noted the exchange of heated words, it also notes that prior = fighting=20 should have put the premises owner on notice.

In Ash, the case cited by the Barshay court, the court = also=20 denied the defendant restaurant's motion for summary judgment on a = negligence=20 complaint. The court pointed out that the exchange of heated words = between two=20 groups of patrons raised an issue of fact as to whether the defendant = restaurant=20 on notice of a possible assault. The plaintiff, a patron, was struck and = injured=20 by a glass canister thrown in a fight between the two groups. "[T]he=20 confrontation between the two groups of patrons, which included yelling, = cursing=20 and vulgarity, had escalated over a period of 10 to 15 minutes = despite=20 repeated warnings, and . . . defendant's employees took no = further action=20 to control this behavior until it erupted into a full-scale brawl = and the=20 police were called"(Ash at 870) (emphasis added).=20

Barshay and Ash can be distinguished from the case at = bar.=20 Although, plaintiff here characterizes the events leading up the alleged = assault=20 as "a dispute" (Complaint, paragraph 29) and "an argument" (id.,=20 paragraph 56), plaintiff offers no evidence that heated words were = exchanged=20 between plaintiff and Mr. Carter, as they were in Barshay. = According to=20 plaintiff's complaint, plaintiff never said a word to Mr. Carter, or = even=20 acknowledged Mr. Carter during the entire class. Instead, plaintiff just = continued "cheering and shouting" during the class (id., = paragraph 31).=20 The court declines to characterize plaintiff's and Mr. Carter's behavior = as=20 either a dispute or an argument.=20

In addition, the circumstances surrounding the assault of the patron = in=20 Ash are inapposite to the circumstances here. In Ash, the=20 plaintiff offered evidence that the employees found reason to get = involved=20 before the assault. The employees repeatedly warned the patrons before = the [*8]assault occurred. Citing D'Amico v = Christie (71=20 NY2d 76, 85 [1987]), the Ash court pointed out that premises = owners "have=20 a duty to control the conduct of third persons on their premises when = they=20 have the opportunity to control such persons and are reasonably aware of = the=20 need for such control" (Ash at 870) (emphasis added). = Here,=20 plaintiff has not demonstrated that defendants were reasonably aware of = the need=20 for such control.=20

Plaintiff has failed to establish that defendant had reason to know = that a=20 patron would get off a spin bike and assault plaintiff or any other = patron in=20 the spin class. Plaintiff has failed to establish that there was a = pattern of=20 criminal or violent behavior by Mr. Carter or other patrons in = defendants' spin=20 classes or on defendants' premises that should have put defendants on = notice of=20 the likelihood of an assault on plaintiff. Plaintiff has failed to = establish=20 that defendants should have foreseen and expected any violent conduct by = Mr.=20 Carter. Here, as in Piazza, the alleged assault by Mr. Carter was = "extraordinary and not foreseeable or preventable in the normal course = of=20 events" (Piazza at 554, citing Maheshwari v City of New York, 2 NY3d 288 = [2004]).=20 Therefore, plaintiff has failed to establish that defendants owed = plaintiff a=20 duty to defuse any argument or dispute between plaintiff and Mr. Carter, = or to=20 remove Mr. Carter from the class prior to the alleged assault. Where = "proof of=20 any essential element [of negligence] falls short, the case should go no = further" (Basso v Miller, 40 NY2d 233, 242 [1976]). Accordingly,=20 defendants' motion to dismiss plaintiff's negligence claim with regard=20 defendants' failed to defuse any argument or dispute between plaintiff = and Mr.=20 Carter, or to remove Mr. Carter from the class is granted.=20

Second, plaintiff contends that defendants were negligent because = they=20 "affirmatively prevented police and emergency response personnel from = reaching=20 the plaintiff who was injured at the time" and were "otherwise negligent = in the=20 ownership, operation, supervision, management, control and/or = maintenance of the=20 premises" (Complaint, paragraph 56). Plaintiff contends that defendants = "refused=20 to call the police or an ambulance despite the fact that plaintiff = specifically=20 asked for emergency response personnel to be called leaving plaintiff to = call=20 9-1-1 himself after plaintiff was injured" (id. at paragraph 53). = Plaintiff further contends that defendants "then tried to prevent police = and=20 emergency responders from entering the facility claiming the matter was = being=20 handled in house'" (id. at paragraph 54).=20

Defendants do not deny refusing to call the police or emergency = personnel=20 upon plaintiff's request. However, the threshold issue is whether = defendants=20 owed plaintiff a duty to call the police or emergency personnel. In = general,=20 there is no legal duty to aid a person in peril (Plutner v Silver=20 Associates, 186 Misc 1025, 1027 [1946] ["Concededly, there is no = legal duty=20 to offer relief or assistance to one who is sick or injured. It is true = that=20 there may be a strong moral and humanitarian obligation to furnish such = aid and=20 assistance under ordinary circumstances, but from time immemorial our = courts=20 have held that there is no legal responsibility so to do"]).[FN5] An exception to this general rule is = when a=20 special relationship exists between the parties, such as a motor vehicle = operator to passengers and persons on the road; a school district to its = students; a prison to its inmates; or a food establishment to its = customers, or=20 common carrier and a passenger [*9](see = e.g.,=20 Middleton v Whitridge, 213 NY 499 [1915]).[FN6] The landlord-tenant relationship = does not fall=20 under this exception. For example, in Jardine v Village of Rockville=20 Centre (39 Misc 2d 334, 335 [1963]), the court held that the = landlord owed=20 no duty to a tenant injured in a fire to call firefighters to the = premises to=20 assist the tenant.=20

The plaintiff was injured in a fire and in her cause of = action=20 against the defendant Eckhoff, as owner of the premises, she sets = forth that=20 his agent, who was then present, knew she was in the building, failed = to=20 rescue her, failed to timely notify the Fire Department of her = presence and=20 failed in his duty to take necessary steps for her safety. Plaintiff = nowhere=20 asserts that said defendant was responsible for the fire. She does = assert that=20 the premises was a fire hazard but, as this is a purely conclusory = allegation,=20 it is insufficient in law. Nor is it alleged that this defendant = violated any=20 ordinance or code which plaintiff is entitled to invoke and which = would=20 constitute the proximate cause of the fire. (Winbush v. City of Mt. = Vernon, 2=20 A D 2d 893. It certainly cannot be said that an owner owes the duty of = rescue,=20 since there is no common law obligation for a landlord to be = benevolent,=20 heroic or to insure the safety of his tenant. And, assuming arguendo = that said=20 defendant owed the duty of notifying the firemen of plaintiff's = presence,=20 there is no assertion that such failure of notification was the = proximate=20 cause of or would have prevented injury (id. at=20 334-335).


Here, plaintiff was not a tenant, but a = patron of=20 defendants' health club. But a premises owner's duties to its patrons = are=20 limited, as well. For example, New York law regulating public eating=20 establishments makes clear that a restaurant owner or employee has no = duty to=20 assist a choking victim.[FN7]=20

In Plutner v Silver Associates, Inc., a case more analogous to = the=20 case at bar, the court held that the defendant bathhouse had no legal = duty to=20 offer relief or assistance to an patron who fell and struck his head = while=20 descending a stairway on the premises (186 Misc 1025, 1028 [1946] [The = bathhouse=20 employee told the plaintiff to wait while the employee attended another = patron,=20 but the plaintiff instead attempted to climb the stairs himself and = subsequently=20 passed out (id. at 1026)]). The court went on to distinguish the duties = of a=20 premises owner and those of a common carrier:=20

The plaintiff, however, attempts to spell out liability in = this=20 case under the theory that the relationship of the parties or the very = nature=20 of the surroundings emphasizes a moral obligation as a result of which = a legal=20 responsibility comes about and renders the defendant liable for = damages for=20 the failure to furnish such aid and succor. The cases cited in support = of this=20 contention are "public carrier" cases [such as Middleton v. = Whitridge]=20 . . . . In this case the only similarity between the bathhouse and a = public=20 carrier is that both operate a business which is held out to the = general=20 public but the duties and responsibilities vary insofar as the legal=20 obligations of each of these different enterprises [*10]are concerned" (id. at 1028) (citations=20 omitted).


The Putnam court goes on to cite a = case=20 involving a Turkish bath in which the court held that the defendant = owner was=20 not liable for "its failure to supply plaintiff any medical attention = after the=20 accident" (id., citing Warren v Werther, 182 AD 783, 787 [1918]). =

Here, even if the Court assumed that defendants breached such a duty, = plaintiff has failed to establish that defendants' failure to provide = assistance=20 by calling the police or emergency responders was the proximate cause of = his=20 injuries (Plutner at 1027). Plaintiff does not even allege that=20 plaintiff's injuries were exacerbated by defendants' failure to call the = police=20 or an ambulance (Warren at 787 ["But there is no proof in the = case that=20 the injuries were in any way aggravated by the tardiness of the medical=20 attendance" (id.)]. Accordingly, plaintiff's claim that defendants were=20 negligent for refusing to call the police or emergency responders also = must=20 fail.=20

Defendants also deny preventing the police and emergency responders = from=20 reaching plaintiff. However, once again, the threshold issue is whether=20 defendants owed plaintiff a duty to allow police and emergency response=20 personnel to reach plaintiff. And, once again, New York courts do not = recognize=20 any legal duty for a premises owner to help the police or emergency = personnel=20 assist an injured patron. New York has criminal laws against obstructing = public=20 servants such as police officers from performing official functions = (Penal Law=20 =A7195.05) and obstructing emergency medical services (Penal Law = =A7195.16). And,=20 under certain circumstances, the violation of a criminal statute can = give rise=20 to civil liability. "The duty imposed by statute is absolute and proof = of=20 disregard of a duty created by statute for the protection of a special = class=20 establishes, it has been said, negligence as a matter of law" = (Schmidt v=20 Merchants Despatch Transp. Co., 270 NY 287, 304 [1936]).=20

However, the success of such an action depends on whether the statute = was=20 designed to protect a class of persons of which plaintiff is a = member.[FN8] "Where a statutory duty is imposed = upon one=20 for the direct benefit or protection of another, and the latter is = damaged=20 because this duty is not performed, a cause of action arises in his = favor based=20 upon the statute, but no one not included in the class so directly to be = benefitted may complain because the statute is not complied with" (Di = Caprio=20 v New York Cent R. Co., 231 NY 94, 97 [1921]).=20

Here, even if plaintiff established that defendants violated Penal = Laws=20 =A7=A7195.05 and 195.16, plaintiff has failed to establish that he is = among the=20 class of persons Penal Laws =A7=A7195.05 and 195.16 were designed to = benefit, giving=20 rise to a cause of action in plaintiff's favor. Penal law =A7195.05 = makes it a=20 class A misdemeanor to interfere with the "administration of law or = other=20 governmental function or prevents or attempts to prevent a public = servant=20 from performing an official function" (emphasis added). At the time = of the=20 alleged assault at the health club, plaintiff here was not involved in = the=20 administration of law, nor is plaintiff a public servant. Penal Law = =A7195.16=20 makes it a class A misdemeanor to interfere with the "efforts of any = service,=20 technician, personnel, system or unit specified in section three = thousand=20 one of the public health law in the performance of their duties." = Plaintiff here=20 has not established that he is a public [*11]health=20 technician or personnel. Therefore, plaintiff has failed to establish = that=20 defendants by allegedly interfering with police and emergency = responders,=20 violated a duty to him.=20

Even if the defendants breached a duty to assist plaintiff by = interfering=20 with the police or emergency personnel who responded to plaintiff's 911 = call,=20 plaintiff failed to establish that defendants' failure to provide = assistance by=20 interfering the police or emergency personnel was the proximate cause of = his=20 injuries (Plutner at 1027). Accordingly, defendants' motion to = dismiss=20 plaintiff's negligence claim with regard to defendants' alleged = interference=20 with police and emergency responders is granted.=20

Third, plaintiff contends defendants "negligently hired, trained, and = retained its employees who were present prior to the Spin Rage' of = Carter and=20 did not intercede in any fashion" (defendant's Exh. A, plaintiff's = complaint,=20 paragraph 56). According to the First Department, "recovery on a = negligent=20 hiring and retention theory requires a showing that the employer was on = notice=20 of the relevant tortious propensities of the wrongdoing employee" = (Gomez v=20 City of New York, 304 AD2d 374, 374-375 [1st Dept 2003]). Here, = plaintiff=20 has failed to establish that defendants' employees engaged in any = wrongdoing.=20 Further, plaintiff failed to provide any evidence that defendants had = notice of=20 any relevant tortious propensities of any of its employees. Accordingly, = defendants' motion to dismiss plaintiff's negligence claim with regard = to=20 defendants' alleged hiring, training and retention of its employees is = granted.=20

Conclusion=20

Based on the foregoing, it is hereby=20

ORDERED that the motion by defendants Equinox Holdings, Inc., d/b/a = Equinox=20 Fitness Club and Equinox-85th Street Inc. for an order, pursuant to CPLR = 3211(a)(7) dismissing plaintiff's complaint is granted, and the = complaint is=20 dismissed as against said defendants; and it is further=20

ORDERED that the remaining parties appear for a preliminary = conference on=20 February 17, 2009, 2:15 p.m.; and it is further=20

ORDERED that the Clerk may enter judgment accordingly; and it is = further=20

ORDERED that plaintiff serve a copy of this order with notice of = entry upon=20 all parties within 20 days of entry.

That constitutes the = decision and=20 order of the Court.=20

That constitutes the decision and order of the Court.

Dated: = December=20 15, 2008____________________________________=20

Hon. Carol R. Edmead, J.S.C.=20

Footnotes


Footnote 1: These facts are taken from plaintiff's = complaint=20 (defendants' motion, Exhibit A).

Footnote 2:The trial garnered much media = attention, with one=20 area newspaper touting such headlines as "Win for Cycle of Violence" = (see=20 appendix to defendant's motion).

Footnote 3: See Nonnon v City of New York, 9 NY3d 825 = [2007];=20 Leon v Martinez, 84 NY2d 83, 87-88 [1994].

Footnote 4: See also Nallan v Helmsley-Spear, = Inc.=20 (50 NY2d 507, 519, 429 NYS2d 606, 613 [1980]): "[E]ven where there is an = extensive history of criminal conduct on the premises, the possessor = cannot be=20 held to a duty to take protective measures unless it is shown that he = either=20 knows or has reason to know from past experience that there is a = likelihood of=20 conduct on the part of third persons . . . which is likely to endanger = the=20 safety of the visitor' (Restatement, Torts 2d, s 344, Comment f ). Only = if such=20 conditions are met may the possessor of land be obliged to take = precautions . .=20 . and to provide a reasonably sufficient number of servants to afford a=20 reasonable protection' (id.)."

Footnote 5:When a person voluntarily acts to = assist a=20 person, the negligent performance of that assistance could lead to = liability=20 (see Nallan v Helmsley-Spear, Inc., 50 NY2d 507, 521-522, 407 = NE2d 451,=20 45, 429 NYS2d 606, 615 [1980]). Here, defendants assumed no duty to = assist=20 plaintiff.

Footnote 6:"If a passenger becomes sick and unable = to care=20 for himself during his journey, it seems plain that the carrier owes him = an=20 added duty resulting from the change of situation. That duty springs = from the=20 contract to carry safely" (Middleton v Whitridge, 213 NY 499, = 510, 108 NE=20 192, 197 [1915]).

Footnote 7: "No duty to act. Nothing contained in = this=20 section shall impose any duty or obligation on any proprietor, employee = or other=20 person to remove, assist in removing, or attempt to remove food from the = throat=20 of the victim of a choking emergency" (Public Health Law =A71352-b.) =

Footnote 8: "[U]nder New York law, a defendant is = liable for=20 negligence per se if the plaintiff establishes (1) that he or she is = among the=20 class of people for whose particular benefit a statute has been enacted; = (2)=20 that a private right of action would promote the legislative purpose = behind the=20 statute; and (3) that creation of the right would be consistent with the = overall=20 legislative scheme" (Fagan v AmerisourceBergen Corp., 356 F Supp = 2d 198,=20 214 [2004]).



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