The defendants, Crunch and Agt Crunch Acquisition, LLC (Crunch) and Gavin "Doe" (collectively, the defendants) move for an order, pursuant to CPLR 3212, granting summary judgment dismissing the complaint of plaintiff, Nell Mellon (plaintiff or Ms. Mellon), and the plaintiff cross-moves for summary judgment on the issue of liability.

Nell Mellon signed up for membership at the Crunch Gym and purchased a block of training sessions with a personal trainer named Shantelle Geathers (Ms. Geathers) on June 10, 2008. The plaintiff trained for an hour per session with Ms. Geathers twice per week from June to December 2008 and attended a yoga class at the gym once per week. Ms. Geathers' employment with Crunch was terminated in December 2008, and Gavin Umeh (Gavin) was assigned to work with the plaintiff starting January 26, 2009.

Gavin testified at a deposition on September 29, 2010 that he was a professional personal trainer employed by Crunch since December 2007 and that he had been employed by three other facilities as a personal trainer from December 2002 to February 2007, before he started working with Crunch. He also testified that he was certified by the American Council of Exercise, had completed several programs with Equinox's Fitness Training Institute and had complied with Crunch's requirement to undergo personal training continuing education.

Ms Mellon testified that she was injured during her second personal training session with Gavin, where she was asked to do an exercise which consisted of having one foot on top of a rectangular bench approximately 2-3 feet high, having the other foot on the ground and hopping in order to switch feet. Gavin demonstrated five or six repetitions of the [*2]exercise before the plaintiff attempted the exercise. On the plaintiff's first attempt, her left foot became caught under the bench causing her to fall backwards. She threw her hands behind her back to catch herself and fractured both wrists.She testified that Gavin was standing at an angle within four to five feet away from her right side immediately before the accident.

The plaintiff's complaint, dated March 31, 2009, alleged that the defendants were negligent in improperly instructing her on how to perform physical exercise; in pushing her beyond her physical capabilities; in failing to provide properly trained and qualified fitness trainers; in failing to adequately and properly train fitness trainers, including Gavin; in failing to provide her with a safe place to exercise; in failing to properly spot her while she was exercising; and in negligently hiring and training fitness trainers.

The plaintiff subsequently filed a note of issue on or about September 30, 2010, and an October 26, 2010 order extended the time to file a summary judgment motion sixty (60) days from the date discovery was completed. The defendants served their motion for summary judgment on December 22, 2010 and the motion was made returnable on January 14, 2011. The motion was adjourned to March 18, 2011, and the plaintiff cross-moved for summary judgment relief on March 3, 2011.

The plaintiff contends that the defendants should not be granted summary judgment because the waiver/release, referred to in the personal training agreement upon which the defendants have relied, was not authenticated or signed, and that the cases which they cited regarding their assumption of risk defense do not apply to the facts of this case. The plaintiff points out that the membership agreement explicitly creates an exception for injuries caused by the gym's negligence. The plaintiff also contends that, even if no such [*3]exception existed, the waiver and release the defendants rely on is barred by General Obligations Law §5-326 as being void against public policy and therefore unenforceable.

In addition, the plaintiff argues that she was injured solely as a result of the defendants' negligence, unlike the plaintiffs in the cases the defendants cited in their application of the assumption of risk doctrine. The cases cited by the defendants, the plaintiff notes, involved risks that were clearly inherent in the activity or sport, and the injuries sustained by those plaintiffs were such that they could have occurred without the defendant's negligence.

The plaintiff maintains that the court should grant their cross motion for summary judgment because there is no doubt that the defendants are liable for the plaintiff's injuries. In furtherance of that argument, the plaintiff submitted a report from a personal training expert, Delon Nelson, CSCS (Certified Strength and Conditioning Specialist), detailing how Gavin departed from good and accepted personal training practices and stating how such departures directly resulted in the plaintiff's accident. These departures included, among other things, Gavin's failure to 1) obtain the plaintiff's written medical or physical history; 2) design and record a safe and appropriate fitness program for the plaintiff; 3) properly spot the plaintiff during the toe touch exercise; and 4) advise her of the risk of falling. The plaintiff's expert also asserts that the toe touch exercise which Ms. Mellon was asked to perform for the first time in only her second session with Gavin was too advanced based on the height of the bench. Delon Nelson proffers that the height of the bench increased her risk of injury, and a safer method would have been to practice the exercise without elevation or on an apparatus with lower elevation.

The defendants assert that the plaintiff's expert's affidavit should not be considered, since she failed to identify and provide credentials for Mr. Delon Neslon, CSCS, as an expert witness during discovery, and is disclosing this evidence for the first time in this matter in her cross motion and opposition papers. Furthermore, the defendants contend that, even if the court considers the plaintiff's affidavit and her expert's affidavit, the plaintiff's untimely cross motion should be denied because she has neither established a prima facie showing of the defendants' negligence nor that their negligence was the proximate cause of her injuries. The defendants assert that the plaintiff failed to demonstrate how Gavin's alleged departures from normal personal training activity proximately caused her accident, and that her expert merely seeks to create liability where none exists. They aver that, contrary to the plaintiff's assertions, the proximate cause of the plaintiff's fall was her failure to properly perform the exercise as instructed and demonstrated, and not Gavin's failure to spot her during the exercise. The defendants disagree with the plaintiff's contention that the toe touch exercise Ms. Mellon was performing at the time of the accident was too advanced for her and maintain that the plaintiff was injured by her own actions and not by any negligence on their part.

The assumption of the risk defense is based on the proposition that "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, 484 [1997]). The application of the assumption of risk doctrine in assessing the duty of care owed by an owner or operator of a sporting facility requires that the participant have "not only knowledge of the injury-causing defect but also appreciation of the resultant risk, but awareness of risk is not to be determined in a vacuum. It is, rather to be assessed against the background of the skill and experience of the particular plaintiff (Maddox v City of New York, 66 NY2d 270, 278, supra [citations omitted]; Turcotte v Fell, 68 NY2d 432, 440, supra; Benitez v New York City Bd. of Educ., 73 NY2d 650, 657-658, supra)." (Id. at 486).

The plaintiff testified that her foot got caught under the bench while doing the toe touch exercise as directed by Gavin. Contrary to Ms. Mellon's testimony of the accident, Gavin testified that the plaintiff used both legs and jumped backward off the bench out of his reach, and he was thus unable to break her fall. Additionally, Ms. Mellon testified that her initial mini-session with Gavin was challenging and different from her previous trainer. At her second session with Gavin two days later, she complained that her legs were very sore from the previous workout. Gavin testified that outside of a cursory conversation he had with Ms. Mellon's former personal trainer, Ms. Geathers, he never personally reviewed any written documentation concerning Ms. Mellon's assessed fitness level or otherwise. Whether or not he accurately assessed Ms. Mellon in his first

mini-session with her and if the toe touch exercise was appropriate for someone at her fitness level, given the circumstances, are facts for the jury to decide.

When applicable, the assumption of risk doctrine "is not an absolute defense but a measure of defendant's duty of care" (Turcotte v Fell, 68 NY2d 432, 439 [1986]). "A gym or athletic facility should not be permitted to evade a responsibility by invoking a generalized assumption of risk' doctrine as though it was some sort of amulet that confers automatic immunity" (Levshitz v United States Tennis Assn. Natl. Tennis Ctr., 196 Misc 2d 460,466 [Civ Ct, Queens County 2003]). "Moreover, a teacher is under a duty to use reasonable care to prevent injury to students. This responsibility includes the obligation not to direct a student to do that which is unreasonably dangerous and to provide such instruction and supervision as is reasonably required to safely perform the directed tasks. What is reasonable will vary with, among other factors, the age and abilities of the student and his or her reasonable expectations of due care under the circumstances" (Yarborough v City Univ. of NY, 137 Misc 2d 282, 285 [1987][citations omitted]).

Generally when a contract includes a release which removes liability from a defendant, the release is enforceable where the language of the exculpatory agreement expresses in unequivocal terms the intention of the parties to relieve a defendant of liability for the defendant's negligence (Bacchiocchi v Ranch Parachute Club, Ltd., 273 AD2d 173 [2000]). General Obligations Law § 5-326 which is entitled " Agreements exempting pools, gymnasiums, places of public amusement or recreation and similar establishments from liability for negligence void and unenforceable," states, in relevant, part that, "[e]very covenant, agreement or understanding in or in connection with, or collateral to, any [*5]contract, ..., entered into between the owner or operator of any gymnasium, ...and the user of such facilities, pursuant to which such owner or operator receives a fee or other compensation for the use of such facilities, which exempts the said owner or operator from liability for damages caused by or resulting from the negligence of the owner, ..., their agents, ...or employees, shall be deemed to be void as against public policy and wholly unenforceable." On its face, General Obligations Law § 5-326 renders contract clauses which release certain enumerated entities from liability void as against public policy." (Bacchiocchi v Ranch Parachute Club, Ltd., 273 AD2d 173 , supra).

The case law has added another dimension which indicates that such contracts or agreements would be void as against public policy unless the entity can show that its facility is used for instructional purposes as opposed to recreational purposes. "The legislative intent of the statute is to prevent amusement parks and recreational facilities from enforcing exculpatory clauses printed on admission tickets or membership applications because the public is either unaware of them or not cognizant of their effect (see Lux v. Cox, 32 F.Supp.2d 92, 99 [1998]; McDuffie v. Watkins Glen Intl., 833 F.Supp. 197, 202 [1993] ). Facilities that are places of instruction and training (see e.g. Millan v. Brown, 295 AD2d 409, 411, 743 N.Y.S.2d 539 [2002]; Chieco v. Paramarketing, Inc., 228 AD2d 462, 463, 643 N.Y.S.2d 668 [1996]; Baschuk v. Diver's Way Scuba, 209 AD2d 369, 370, 618 N.Y.S.2d 428 [1994] ), rather than "amusement or recreation" (see e.g. Meier v. Ma-Do Bars, 106 AD2d 143, 145, 484 N.Y.S.2d 719 [1985] ), have been found to be outside the scope of the statute. In assessing whether a facility is instructional or recreational, courts have examined, inter alia, the organization's name, its certificate of incorporation, its statement of purpose and whether the money it charges is tuition or a fee for use of the facility (Citations omitted). Difficulties arise in this area of law in situations where a person is injured at a mixed-use facility, namely, one which provides both recreation and instruction.In some cases, courts have found that General Obligations Law § 5-326 voids the particular release where the facility provides instruction only as an "ancillary" function, even though it is a situation where the injury occurs while receiving some instruction (see e.g. Bacchiocchi v. Ranch Parachute Club, supra at 175-176, 710 N.Y.S.2d 54; Wurzer v. Seneca Sport Parachute Club, 66 AD2d 1002, 1002-1003, 411 N.Y.S.2d 763 [1978] ). In other mixed-use cases, courts focused less on a facility's ostensible purpose and more on whether the person was at the facility for the purpose of receiving instruction (Scrivener v. Sky's the Limit, 68 F.Supp.2d 277, 281 [1999]; Lux v. Cox, supra at 99)." Nadine Lemoine V. Cornell University 2 AD3d 1017 [2003].

The plaintiff admitted in her testimony that she read the Crunch membership agreement before signing it which provides in pertinent part as follows: section 2.0, entitled "Member Risk" provides: "Members and guests shall hold the club harmless from any loss, theft, cost, claim injury, damage or liability incurred as a result of club use and membership activities, except resulting from the negligence of the club." and section 2.4, entitled "Activity Risk" provides: "Any strenuous athletic or physical activity involves certain risks. Members and their guests assume the risk of any and all accidents or injuries of any kind that may be sustained by, or in connection with, use of the facilities and release, hold the club harmless, discharge and absolve the club, its agents and employees from any and all liability or responsibility except if such accident or injury is the result of the negligence of the club, its agents or employees." Since the plaintiff's action is based on injuries sustained due to the defendants' alleged negligence, it is clear that the above clauses do not prevent the plaintiff from bringing a suit against the defendants in this case.

Here, summary judgment is not warranted based on the defendants' position that the plaintiff assumed the risk of injury since the parties' conflicting testimony raises issues of fact as to how the accident happened and whether the defendants' conduct enhanced the risk ordinarily associated with the exercise (see Mathis v New York Health Club, Inc., 261 AD2d 345, 346 [1999]). That conflicting testimony equally negates the plaintiff's summary judgment cross motion and makes [*6]moot the need to address the timeliness of that cross motion. As a matter of law, the defendants failed to make a prima facie showing that the waiver/release the plaintiff signed in their membership and personal training service agreements bars her recovery in this suit. In light of the fact that Ms. Mellon acknowledged that she read and executed a personal trainer agreement when she signed up with the gym, and the defendant submitted an unsigned copy of said agreement which was not authenticated or recognized by the plaintiff, any release or waivers contained therein will not be considered at this time.

This court finds that the defendants have not made a prima facie showing of their entitlement to summary judgment and "[a] jury should assess whether plaintiff's injuries were the result of any breach of duty by defendants" (Corrigan v Musclemakers, Inc., 258 AD2d 861, 863 [1999]) Accordingly, it is

ORDERED that the defendants' summary judgment motion to dismiss Ms. Mellon's complaint is denied; and it is further

ORDERED that Ms. Mellon's summary judgment cross motion is denied.

This constitutes the decision and order of the court.

E N T E R

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yvonne lewis, J.S.C.