Plaintiff brings this negligence action to recover damages for personal injuries he allegedly sustained when he was struck in the back of his head by a kettlebell, while taking an instructional course taught by defendant KettleBell Concepts, Inc. ("KettleBell Concepts"), at the hotel owned by defendant Hilton Hotels, Corp. Specifically, plaintiff alleges that he sustained injuries when a kettlebell swung by an anonymous fellow attendee, who was negligently permitted, allowed and instructed to continue swinging kettlebells, despite people moving about the room, allegedly resulting from defendants' recklessness, negligent supervision, and negligent hiring.

Defendants Hilton Hotels Corp., Hilton Worldwide, Inc., KettleBell Concepts and David Ganulin, have jointly filed a motion for summary judgment. Defendants argue that this action is barred since plaintiff waived all liability as to defendants when he registered online for the instructional course, which required him to agree to the Terms and Conditions of the class, including an absolute waiver of liability for any injuries sustained. Defendants further argue that summary judgment should be granted in favor of defendants Hilton Hotels Corp. and Hilton Worldwide, Inc. (collectively hereinafter, "Hilton"), on the grounds that plaintiff's injuries were not caused by, and did not arise out of, a condition of Hilton's premises.

In opposition, plaintiff argues that defendants' alleged waiver of liability is not enforceable on the grounds that the language contained in the alleged waiver did not express, in unequivocal terms, the intention of the parties to relieve defendants of liability for defendants' own negligence or other fault of the defendants. Plaintiff also argues that the Hilton defendants are liable for failing to protect its guests against reckless and grossly negligent conduct by its lessee, defendant KettleBell Concepts.

In support of its opposition to defendants' motion for summary judgment, plaintiff proffers, inter alia, the affidavit of Michael Stefano, a certified kettlebell trainer, who opines that "during any type of break, when no instructors are maintaining the required vigilant supervision, no movement or swinging of kettlebells should occur." Stefano aff, exhibit A, ¶ 4. Mr. Stefano's affidavit further provides that:

"[t]he National Strength and Conditioning Association recommends a six foot by four foot safety cushion, as a minimum, between kettlebell lifters at free weight stations. Such safety areas must [*3]be maintained whenever kettlebells are allowed to be lifted. Kettlebell lifters should be permitted to work only in designated lifting areas and . . . an area of at least five feet (side to side) and seven feet (front to back) should be maintained around all lifters when lifting is being performed. . . . Moreover, for safe egress and ingress, there should be at least a 36 inch walkway maintained into the lifting area and a clear path provided to exits. No lifting should ever occur in this area, especially when student lifters are moving in or out of the facility."

Id. at ¶¶ 5-6.

Summary judgment is a drastic remedy and should only be granted if the moving party has sufficiently established that it is warranted as a matter of law. Alvarez v Prospect Hosp., 68 NY2d 320, 324 (1986). "The proponent of a summary judgment motion 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 University Medical Center, 64 NY2d 851, 853 (1985). Despite the sufficiency of the opposing papers, the failure to make such a showing requires denial of the motion. Id. at 853. Even in negligence cases where the facts are conceded, questions often remain as to the reasonableness of a party's actions under the circumstances. Ugarriza v Schmieder, 46 NY2d 471, 476 (1979). As such, summary judgment is rarely granted in negligence actions unless there is no conflict at all in the evidence. Id. at 475-476.

Plaintiff's Alleged Waiver of Liability

After review of the papers, defendants' motion for summary judgment is denied as to the issue of plaintiff's waiver of liability. While defendants are correct in arguing that New York General Obligations Law § 5-326 ^[FN1] does not apply here to void the applicability of the waiver, as defendants' do not fall within any of the establishments listed within such statute, the subject [*4]waiver is, nonetheless, void for the reasons stated below. It is:

"well settled... that the law frowns upon contracts intended to exculpate a party from the consequences of his own negligence and...such agreements are subject to close judicial scrutiny. . . . To the extent that agreements purport to grant exemption for liability for willful or grossly negligent acts they have viewed as wholly void . . . ."

Gross v Sweet, 49 NY2d 102, 106 (1979). The Court of Appeals in Gross held that:

"it must appear plainly and precisely that the limitation of liability extends to negligence or other fault of the party attempting to shed his ordinary responsibility. . . . That does not mean that the word negligence' must be employed for courts to give effect to an exculpatory agreement; however, words conveying a similar import must appear."

Here, the subject waiver contained in the online terms and conditions and acknowledged by plaintiff while completing his online registration states, in pertinent part, that:

"[a]s a member, invitee, or guest of KettleBell Concepts, I intend to and will engage in physical activities and classes at the Hilton Hotel . . . . I assume and accept full responsibility for any and all injuries or damages that may occur to myself . . . in or about the Facilities and forever fully release, remise, indemnify, and agree to defend and hold harmless KettleBell Concepts [and] the Hilton . . . from any and all causes of actions, costs, damages, expenses, and liability whatsoever."

The court notes that in their reply papers, defendants argue for the first time that plaintiff agreed to the terms of the online contract and thereby assumed the risk of attending a course in which he knew people would be swinging kettlebells. However, arguments advanced for the first [*5]time in reply are entitled to no consideration by a court entertaining a summary judgment motion. See Lazar v Nico Indus., 128 AD2d 408, 409-10 (1st Dept 1987); Azzopardi v American Blower Corp., 192 AD2d 453, 454 (1st Dept 1993); Fisher v Crossroad Realty Co., 63 AD3d 540, 540 (1st Dept 2009). An attempt to raise new issues in reply papers is improper. See Schiulaz v Arnell Constr. Corp., 261 AD2d 247 (1st Dept 1999). "[T]he function of a reply affidavit is to address arguments made in opposition to the position taken by the movant and not to permit the movant to introduce new arguments in support of the motion." Ritt v Lenox Hill Hosp., 182 Ad2d 560, 562 (1st Dept 1992); see Lazar, 128 AD2d at 409-410. Regardless, plaintiff proffers, inter alia, the affidavit of Michael Stefano, a certified kettlebell trainer, whose opinion underscores the existence of an issue of fact as to defendants' negligence, precluding summary judgment on this issue.

Liability as to Hilton Hotels Corp. and Hilton Worldwide, Inc.

It is well settled that landowners and business proprietors have a duty to exercise reasonable care in maintaining their properties in a reasonably safe condition. Di Ponzio v Riordan, 89 NY2d 578, 582 (1997); see also Galindo v Town of Clarkstown, 2 NY3d 633, 636 (2004); Kush v City of Buffalo, 59 NY2d 26, 29-30 (1983); Basso v Miller, 40 NY2d 233 (1976); Banner v New York City Hous. Auth., 73 AD3d 666, 667 (1st Dept 2012). "However, this duty only arises when there is an ability and opportunity to control such conduct, and an awareness of the need to do so." Jean v Wright, 82 AD3d 1163, 1164 (2011), lv denied 17 NY3d 704 (2011); see also D'Amico v Christie, 71 NY2d 76, 85 (1987) ("[Landowners] have a duty to control the conduct of third persons on their premises when they have the opportunity to control such persons and are reasonably aware of the need for such control.") Further, "a possessor of land, whether he be a landowner or a leaseholder, is not an insurer of the visitor's safety." Nallan v Helmsley-Spear, Inc., 50 NY2d 507, 519 (1980); see Raghu v 24 Realty Co., 7 AD3d 455, 456 (1st Dept 2004).

Here, it is undisputed that Hilton merely rented the space to KettleBell Concepts in which KettleBell Concepts' class was offered. As plaintiff alleges his injuries were caused when he was hit by a kettlebell swung by another student in the class, and there are no allegations that the premises was not reasonably safe or that plaintiff's injuries were a result of any alleged dangerous or defective condition of the premises owned by Hilton, defendants' motion for summary judgment is granted as to the Hilton defendants and the case is dismissed as to such defendants. Moreover, plaintiff's argument that the Hilton defendants are liable for failing to protect its guests against reckless and grossly negligent conduct by its lessee, defendant KettleBell Concepts, fails to raise a triable issue of fact, as there is no evidence in the records of recklessness or gross negligence.

Accordingly, it is

ORDERED that the defendants' motion for summary judgment is granted to the extent of granting summary judgment of dismissal in favor of defendants Hilton Hotels Corp. and Hilton Worldwide, Inc.; and it is further

ORDERED that within 30 days of entry of this order, defendants Hilton Hotels [*6]Corp. and Hilton Worldwide, Inc. shall serve a copy of this order with notice of entry upon all parties and upon the Clerk of this Court; and it is further

ORDERED that, upon proof of service of a copy of this order with notice of entry, the Clerk is directed to enter judgment dismissing the complaint as against defendants Hilton Hotels Corp. and Hilton Worldwide, Inc. only, with costs and disbursements; and it is further

ORDERED that the action with respect to the remaining defendants, KettleBell

Concepts and David Ganulin, shall continue.

This is the decision and order of the court.

Dated:March 5, 2014

DORIS LING-COHAN, J.S.C.

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