Rivera v. Jack LaLanne Fitness Centers, Inc.

702 N.Y.S.2d 302 | N.Y. App. Div. | 2000

—Order, Supreme Court, Bronx County (Janice Bowman, J.), entered on or about July 16, 1999, which denied defendant’s motion for summary judgment dismissing the complaint, unanimously affirmed, without costs.

There is no merit to defendant’s contention that the assumption of the risk doctrine bars plaintiffs claim for personal injuries caused by his tripping on a carpeted indoor running track, which was owned and maintained by defendant health club. The ripples in the carpet that plaintiff alleges caused his fall cannot, on this record, be found to constitute an inherent risk of the sport of indoor track, as opposed to a defective condition occurring in the ordinary course of the property’s maintenance and implicating typical comparative negligence principles (see, Morgan v State of New York, 90 NY2d 471, 485-486, 488-489). Nor is there merit to defendant’s argument that the alleged defect was so trivial as not to be legally actionable, in view of the deposition testimony that defendant had been given at least several days prior notice of the ripples in the carpet and that other members of the fitness center had allegedly fallen on the same track surface (see, Gutierrez v Riverbay Corp., 262 AD2d 64). Concur — Nardelli, J. P., Tom, Wallach, Rubin and Andrias, JJ.