Recitation, as required by CPLR § 2219 [a] of the papers considered in the review of this (these) motion(s):

PaperNumbered

Defs' n/m (sj), affirm, exhs1

Plt's DEH opp affirm, exhs2 ———————————
51;———————————& #151;——————————— ;———————————
51;—————————-

In this action, plaintiff seeks to recover for injuries sustained while he was performing a "squat" during a personal training session at defendant's business. Defendants now move for summary judgment, arguing that the primary assumption of the risk doctrine bars plaintiff's recovery. Plaintiff opposes the motion. For the reasons that follow, the motion is granted. [*2]

Issue has been joined, and the motion was brought within 120 days after Notice of Trial was filed, therefore summary judgment relief is available (CPLR § 3212; Brill v. City of New York, 2 NY3d 648 [2004]).

On December 5, 2006, plaintiff sustained injuries to his back while performing a squat exercise with 300 pounds during the course of a personal training session with Christopher Campbell, a personal trainer employed by Equinox. At the time of the accident, plaintiff was 39 years old. According to plaintiff's testimony at his deposition, plaintiff had a long history of performing exercises with weights. Plaintiff had begun performing the squat exercise in 2004 with a personal trainer at the New York Sports Club. At that time plaintiff was advised about the potential for injury while performing squats. Plaintiff progressed to the point where he typically lifted 200 pounds prior to the time of his injury. Plaintiff had tried lifting 220 pounds with a prior personal trainer at Equinox, but had never attempted anything higher before the date of his injury.

Campbell testified at his deposition that "[w]hen I give anybody a squat, I always talk about the risks of a squat and the benefits." Campbell explained that the risks include hurting your back, knees, herniated disk, ACL tears, hernia and sprained wrist. When asked if he explained those risks to plaintiff, Campbell stated "[p]robably yes."

Plaintiff claims that Campbell failed to design a competent safe program for him to perform, specifically when he asked plaintiff to squat 300 pounds, a weight that Campbell knew was too heavy for plaintiff. Plaintiff points to an email sent to all his clients on December 6, 2006, including plaintiff, wherein Campbell stated: "if you ask me to do heavy lifting (ie. 200lbs bench or 300lbs squat) and I don't think your (sic) ready, I will say NO."

Defendants cite the myriad cases which have applied the primary assumption of the risk doctrine to find that no duty is owed to an injured party who engages in athletic or recreational activity. In opposition, plaintiff argues that because plaintiff "was not involved in playing any game on a field which is the premise in almost all the cited cases by defense counsel", the doctrine does not apply. Plaintiff also maintains that whether the injury he sustained was forseeable is a jury question.

Discussion

A movant seeking summary judgment in its favor must make a prima facie showing of entitlement to judgment as a matter of law, tendering sufficient evidence to eliminate any material issues of fact from the case " (Winegrad v. New York Univ. Med. Ctr., 64 NY2d 851, 853 [1985]). The evidentiary proof tendered, however, must be in admissible form (Friends of Animals v. Assoc. Fur Manufacturers, 46 NY2d 1065 [1979]). Once met, this burden shifts to the opposing party who must then demonstrate the existence of a triable issue of fact (Alvarez v. Prospect Hosp., 68 NY2d 320, 324 [1986]; Zuckerman v. City of New York, 49 NY2d 557 [1980]).

When issues of law are the only issues raised in connection with a motion for summary judgment, the court may and should resolve them without the need for a testimonial hearing (Hindes v. Weisz, 303 AD2d 459 [2d Dept 2003]).

The question of whether the doctrine of primary assumption of the risk applies, which thereby vitiates the defendant's duty of care to plaintiff, is ripe for adjudication on a motion for summary judgment. In cases involving athletic or recreational activities, primary assumption of [*3]risk negates any duty on the part of a defendant to safeguard the plaintiff from commonly known risks inherent in the sport or activity (Shay v. Contento, 92 AD3d 994 [3d Dept 2012]). "[T]he inference of such an assumption as a ground for exculpation may not be made ... except in the context of [athletic or recreational] pursuits both unusually risky and [socially] beneficial that the defendant has in some nonculpable way enabled" (id at 995, quoting Trupia v. Lake George Cent. School Dist., 14 NY3d 392, 396 [2010]).

Defendants have met their burden on this motion for summary judgment. Plaintiff's framing of the activity that he engaged in as "exercise under the supervision of a paid expert in a controlled setting" is still simply exercise, where primary assumption of the risk generally applies. Moreover, based on the record before the Court, the doctrine applies to this case. Defendants have established that the activity which led to plaintiff's injury, a squat, carries commonly known risks including back injury. Plaintiff's speculation that squatting 300 pounds poses different risks is rejected. Nor has Campbell's 12/30/06 email raised an issue of fact that defendants engaged in some other culpable conduct.

Accordingly, the motion is granted, and the case is dismissed.

Conclusion

In accordance herewith, it is hereby:

ORDERED that defendants' motion for summary judgment is granted; and it is further

ORDERED that this action is dismissed.

Any requested relief not expressly addressed by the Court has nonetheless been considered and is hereby denied and this constitutes the decision and order of the Court.

Dated:July 17, 2013So Ordered:

New York, New York_____________________

Hon. Lynn R. Kotler, J.C.C.