This Decision & Order addresses four separate motions relating to this personal injury action commenced by plaintiff resulting from a fall from a treadmill that was allegedly caused by an unexpected acceleration.

First, defendant SciFit Systems Inc. (hereinafter "SciFit") moves for an order granting summary judgment dismissing plaintiff's complaint, any cross-claims, and barring plaintiff's expert and report as a net opinion.

Second, defendant Lourdes Hospital (hereinafter "Lourdes") likewise moves for summary judgment dismissing plaintiff's complaint, any cross-claims, and barring plaintiff's expert and report.

Next, third-party defendant Advantage Sport & Fitness, Inc. (hereinafter "Advantage") cross-moves for summary judgment dismissing Lourdes' third-party complaint against it.

Fourth, defendant Lourdes makes a second motion for summary judgment, this time for

A.The Parties

At the time of this accident plaintiff Mary Cody, 85 years old, was a member at the Lourdes Cardiac Rehabilitation Department. Plaintiff testified in her deposition that she had joined the fitness program in 2008 to exercise with her husband who was recovering from heart surgery.

SciFit is the manufacturer of the treadmill at issue in this accident.

Lourdes, via its Cardiac Rehabilitation Department, offers a "Lifetime Fitness Program" by which for a daily fee, members such as plaintiff may use the facilities with staff available to monitor heart rates. In 2011, Lourdes began building a new facility and purchased fitness equipment including this treadmill from Advantage. Lourdes Cardiac Rehabilitation employee Michael Hurly, director of musculoskeletal services, was in charge of purchasing the equipment from Advantage. Cardiac Rehabilitation supervisor Diane Barton instructed plaintiff on the use of the treadmill.

Advantage is a distributor/dealer of fitness equipment including the SciFit brand and in

B.The Accident

On May 31, 2012, plaintiff, then 85 years old, went to the Lourdes Cardiac Rehabilitation Department to exercise as she had done for years. Plaintiff got on a treadmill which has been identified as SCI-AC5000 treadmill bearing serial number 732-005721. As will be discussed in more detail below, plaintiff started the treadmill but it accelerated quickly and plaintiff was thrown from the treadmill sustaining personal injuries. The accident was captured by nearby video cameras and the court has reviewed the same.

Plaintiff recalled at her deposition that she had received instructions from Lourdes employees on the operation of the treadmill as follows:

instructions that were given?

C.The Pleadings

The summons & complaint were filed on December 3, 2012 and allege four causes of action as follows: (1) a negligence cause of action against SciFit and Lourdes; (2) breach of implied warranty against SciFit only; (3) lack of adequate and proper warnings against SciFit only; and (4) strict products liability against SciFit only.

SciFit interposed a verified answer with affirmative defenses and three cross-claims against Lourdes, namely common law indemnification, contractual indemnification, and entitlement to insurance coverage.

Lourdes interposed a verified answer with affirmative defenses and two cross-claims against SciFit, namely indemnification and negligence.

On December 12, 2013, Lourdes filed a third-party summons & complaint against Advantage alleging three causes of action including: (1) contractual indemnification; (2) contribution; and (3) negligence by Advantage in failing to warn, train and/or educate Lourdes in the safe setup and operation of treadmill.

Advantage interposed a verified answer with affirmative defenses and counter-claims

D.Training

On May 8, 2012, Mr. Hurley represented to Advantage that an in-service visit was not necessary (Advantage Exhibit F). Mr. Hurley explained his decision in his deposition stating "I [*2]mean, the user interface is relatively intuitive and didn't feel the need for that [training]. I would have been - - felt that it would have been remedial " (Hurley EBT, p 18).

On May 25, 2012, Mr. Hurley from Lourdes emailed Advantage and stated "I have changed my mind on the SciFit education, we are having enough troubles with the equipment to where I want to insure it is not user error so I would be interested in them coming out to educate us on the equipment [emphasis added]" (Advantage Exhibit G).

On that same date, Advantage returned Lourdes emails requesting possible dates. Lourdes did not respond to that email prior to plaintiff's accident on May 31, 2012.

Plaintiff also refers to two incidents of unexpected acceleration on SciFit treadmills that occurred in North Carolina in April 2012. Plaintiff submits an affidavit from one Nellie Justice who states that on April 23, 2012 she hit the quick start button, tapped the plus button to increase speed slowly, but the treadmill accelerated quickly throwing her from the treadmill. The deposition testimony of Randy Yost, vice president of operations, also confirmed the occurrence of a second unexpected acceleration incident in North Carolina (Yost EBT, pp 54-55).

F.Change in software

This accident occurred on May 31, 2012. On July 10, 2012, plaintiff's counsel notified Lourdes by letter that a personal injury claim was being considered in relation to the accident and requested various reports in connection therewith (Plaintiff's Exhibit A). Lourdes did not respond to the request for information. On August 14, 2012, plaintiff filed a petition seeking pre-suit disclosure which was filed and served on Lourdes (Cody v Lourdes Hospital, Broome Index No. 2012-2027). Lourdes ultimately responded with materials. Petitioner (plaintiff here) withdrew the petition by letter dated August 31, 2012 with the implicit understanding that the treadmill would remain in "as is" condition pending inspection.

Mr. Hurley confirmed in his deposition that immediately following plaintiff's accident he reached out to Advantage representatives regarding four possible changes to the treadmills (Hurley EBT, p 56) and discussions regarding the changes continued up to two months following [*3]plaintiff's accident (Hurley EBT, p 74). The court was not provided with an exact date on which the change in software occurred, but suffice it to say it was after plaintiff's August 2012 petition and before plaintiff's inspection of the treadmill in October 2012.

Thereafter, plaintiff and Lourdes arranged for plaintiff's expert to inspect the treadmill on October 24, 2012. During the course of the inspection on October 24, 2012, no one by or on behalf of Lourdes informed plaintiff's representatives or expert that the treadmill's software had been altered. It was not until six months later in April 2013 during the exchange of paper discovery, that the information regarding new software was disclosed to plaintiff.

G.The Experts

In support of its motion, SciFit submits an expert report from Peter Chen, MSME, PE. Mr. Chen examined the treadmill on June 25, 2012 and in sum or substance found that there was no evidence that the treadmill was defective before or after the accident. Moreover, Mr. Chen found that plaintiff did not follow instructions by starting the machine using the QuickStart feature, but rather must have entered the manual program mode (Chen Report, Ex K, p 30). Further, while Mr. Chen acknowledges that there was a change in the software operating this treadmill after this accident, he concludes that this treadmill was not defective in design in either the current firmware or the original firmware (Chen Report, Ex K, p 32).

Plaintiff's expert, David J. Bizzak, PhD, PE, issued a report based upon an inspection of the subject treadmill on October 24, 2012 finding two defects in the subject treadmill (Bizzak Report, Ex J). First, Bizzak found that the treadmill would increase speed rapidly if the speed increase button was pressed continuously. Second, Bizzak found that there was a delay in belt speed acceleration and attendant user feedback.

However, of critical import to this court is the following statement in Bizzak's report and which will be discussed in more detail below, namely that "[i]t is important to note that I was unaware, at the time of my inspection, that the software controlling the operation of the treadmill had been altered to prevent automatic increase of belt speed if the touchpad control was continuously depressed" (Bizzak report attached as SciFit Exhibit J, p 4 [emphasis added]).

Plaintiff's fourth cause of action is for products liability against SciFit only. By way of this motion, SciFit alleges it is entitled to summary judgment dismissing plaintiff's products [*4]liability cause of action.^[FN2]

Generally, in a products liability action, "[a] party injured as a result of a defective product may seek relief against the product manufacturer or others in the distribution chain if the defect was a substantial factor in causing the injury" (Speller v Sears, Roebuck & Co., 100 NY2d 38, 41 [2003]). Moreover, "[a] product may be defective when it contains a manufacturing flaw, is defectively designed or is not accompanied by adequate warnings for the use of the product [citations omitted]" (Liriano v Hobart Corp., 92 NY2d 232, 237 [1998]). New York has recognized the circumstantial approach in products liability cases (Codling v Paglia, 32 NY2d 330 [1973]). In order to proceed in the absence of evidence identifying a specific flaw, a plaintiff must prove "[t]hat the product has not performed as intended and [have] excluded all causes of the accident not attributable to defendant[s]..." (Halloran v Virginia Chems., 41 NY2d 386, 388 [1977]; DiMura v City of Albany, 239 AD2d 828 [3 Dept 1997]).

On this defense summary judgment motion in a products liability action, the burden in the first instance is on ScitFit to come forward with evidence in admissible form establishing that plaintiff's injuries were not caused by a manufacturing defect in the product (Graham v Pratt & Sons, 271 AD2d 854 [3d Dept 2000]). SciFit's entire summary judgment argument is based upon the argument that there is no foundation for Bizzak's testimony since plaintiff herself testified that she tapped the increase speed control button and did not hold it down continuously. SciFit argues that Bizzak's opinion that the software was defective because of the ability of the machine to rapidly advance speed by holding down the button is contradictory to plaintiff's deposition testimony as to what actually happened (Keleman v Quinton Fitness Equip., 41 AD3d 172 [1st Dept 2007]).

The court finds that SciFit's expert's report meets its initial burden thereby shifting the burden to plaintiff to come forward eliminating all causes of the accident not attributable to defendants.

As noted above, Bizzak opines that his inspection of the treadmill - after the change in software unbeknownst to plaintiff and Bizzak - revealed two defects, namely the treadmill would increase speed rapidly if the speed increase button was pressed continuously and there was a delay in belt speed acceleration and attendant user feedback. Plaintiff argues there is an evidentiary foundation for Bizzak's opinion because his reconstruction of plaintiff's actions is completely consistent with plaintiff's actions on the video, if not her testimony. In other words, Bizzak opines that plaintiff must have pressed quick start as she believed and depressed the increase speed button but inadvertently maintained pressure on the speed control. Bizzak's reconstruction of the accident is based upon his actual observation of the video and the court finds that provides sufficient foundation for the admission of the expert's testimony and report at trial. Contrary to defendant's arguments, it was not plaintiff's burden to conclusively establish [*5]her case in opposition to the motion (Tenkate v Moore, 274 AD2d 934 [3d Dept 2000]).

Thus, in this court's view, the parties have presented a classic battle of the experts that may not be resolved on a motion for summary judgment (Corbett v County of Onondaga, 291 AD2d 886 [4th Dept 2002]; Abar v Freightliner Corp., 208 AD2d 999 [3d Dept 1994]).

Parenthetically, even if the court were to have agreed with SciFit that there was no foundation for plaintiff's expert's opinion, the court would have found that plaintiff was hampered in responding to this motion for summary judgment based upon spoliation. It is well-settled that spoliation sanctions "[a]re not limited to cases where the evidence was destroyed willfully or in bad faith, since a party's negligent loss of evidence can be just as fatal to the other party's ability to present a defense [citations omitted]" (Squitieri v City of New York, 248 AD2d 201, 203 [1st Dept 1998]). Moreover, the propriety of imposing spoliation sanctions is within broad discretion of trial court and will not be disturbed absent clear abuse of discretion (Merrill v Elmira Hgts. Cent. School Dist., 77 AD3d 1165 [3d Dept 2010]). Case law identifies various factors that should be considered in determining whether spoliation sanctions are appropriate, including but not limited to who destroyed the evidence; whether a key piece of evidence was destroyed; whether the evidence was destroyed before the adversary had an opportunity to inspect the same; whether the opposing party is prejudiced in their ability to present a defense; and awareness of pending litigation is an additional factor to be considered (Kirkland v New York City Hous. Auth., 236 AD2d 170 [1st Dept 1997]).

Once the court determines spoliation has occurred, then "[t]he court may make such orders with regard to the failure or refusal as are just" (CPLR § 3126). In determining the proper sanction the goal is to provide proportionate relief to the party deprived of the lost evidence, such as precluding evidence favorable to the spoliator to restore balance to the litigation; payment of costs associated with the development of replacement evidence; use of adverse inference charge at trial; and/or the ultimate sanction of dismissing the action or striking responsive pleadings (Puccia v Farley, 261 AD2d 83 [3d Dept 1999]; Ortega v City of New York, 9 NY3d 69, 76 [2007]).

Here, the court finds that all the key factors supporting a finding of spoliation are present, namely that the key piece of evidence (the treadmill) was altered, after a defendant (Lourdes) had notice of potential litigation and prior to plaintiff's inspection of the same, thereby prejudicing plaintiff in the ability to establish a defect in the design or flaw in this machine. The court finds that no matter how defendants wish to characterize the change in software, be it "upgrading", "improving" or "fixing", the result remains the same, namely that the allegedly defective product was altered by Lourdes after it was aware of the commencement of litigation.^[FN3] Due to these actions, plaintiff is now unable to reproduce this accident and/or to inspect the treadmill in the [*6]same condition it was at the time of this accident.^[FN4] Stated another way, plaintiff is now prevented from ever proving that this accident happened just as she described and just as witness Nellie Justice described her own similar accident. Based upon the actions of defendants in changing the treadmill's software prior to plaintiff's inspection of the same and without notifying plaintiff's counsel (even during the actual inspection), plaintiff is unable to prove that this treadmill did not perform as intended and is unable to exclude all causes of the accident not attributable to defendants.

With respect to the proper sanction to be imposed, with respect to this motion, the court finds even if it did not consider plaintiff's expert opinion due to lack of foundation, that spoliation sanctions would have been implemented so as to deny SciFit's motion for summary judgment. In other words, defendants spoliation prevented plaintiff's expert from being able to conduct a thorough inspection of the treadmill and defendants should not now be able to use this inability - caused by their own actions - to their advantage. With respect to this action as a whole, the court finds the proper sanction in all likelihood to be consideration at the time of trial is the use of the adverse inference charge (PJI 1:77).

SciFit's motion for summary judgment is denied.

With respect to Lourdes' (first) motion for summary judgment dismissing plaintiff's complaint, any cross-claims, and barring plaintiff's expert and report, the court finds in the first instance that plaintiff did not plead a products liability cause of action against Lourdes. The only cause of action by plaintiff against Lourdes is a negligence cause of action. To the extent that Lourdes also argues there is no foundation for plaintiff's expert, that portion of the motion is denied for the same reasons set forth herein above. The court will address Lourdes' motion solely in the context of a negligence cause of action and not a products liability action.

It is well-settled that to establish a cause of action sounding in negligence, a plaintiff must establish the existence of a duty on defendant's part to plaintiff, breach of the duty and damages (Akins v Glens Falls City School Dist., 53 NY2d 325, 333 [1981]). The court finds that on the issue of whether Lourdes' breached its duty to plaintiff that questions of fact abound. With respect to the issue of notice, plaintiff has submitted sufficient evidence raising questions of fact regarding whether Lourdes had actual notice of incidents of unexpected acceleration of treadmills as outlined above (Barton EBT; Brown Affidavit; Ogden Affidavit). Moreover, the court finds that questions of fact exist as to whether Lourdes adequately trained its employees in the use of [*7]the new treadmills. Plaintiff submitted proof via Hurley's deposition testimony that Lourdes initially and repeatedly refused training from Advantage based upon the belief that the operation of the machines was intuitive. Finally, the court further finds questions of fact as to whether Lourdes adequately instructed plaintiff on the use of the treadmill including but not limited to the manner in which the speed control button was "tapped" and the location on which the safety clip was attached to the user's clothing.

With respect to Lourdes' argument that plaintiff's failure to follow their instructions bars her action, the court finds the argument to be without merit. The failure to follow instructions here, even if true, cannot be said to be the sole proximate cause of the injuries and, as such, does not warrant summary judgment (Cecere v Zep Mfg. Co., 116 AD3d 901 [2d Dept]).

In view of the foregoing, Lourdes' motion for summary judgment dismissing plaintiff's complaint, any cross-claims, and barring plaintiff's expert and report is denied.

Lourdes' third-party complaint against Advantage is based upon the theory that Advantage failed to adequately train Lourdes in the use of the newly purchased treadmills.^[FN5]

Initially, the court finds that Lourdes' has taken inconsistent positions on its (first) motion for summary judgment wherein it contends its employees properly trained plaintiff how to operate the treadmill as compared to its third-party complaint which alleges that Advantage was negligent for failing to train Lourdes how to operate the treadmill. Under the doctrine of estopple against inconsistent positions, Lourdes is precluded from taking contrary positions within the same action (Clifton Country Rd. Assoc. v Vinciguerra, 252 AD2d 792 [3 Dept 1998]). For this reason alone the court finds that Advantage's motion for summary judgment dismissing Lourdes' third-party complaint should be granted.

As a separate and distinct basis for summary judgment, however, the court finds that the proof submitted by Advantage overwhelmingly establishes that Advantage repeatedly sought to provide training to Lourdes but was turned down by Mr. Hurley until just days before plaintiff's accident.

The court finds that Advantage's cross-motion seeking summary judgment dismissing the third-party complaint should be granted.

For the reasons stated above, Lourdes' cross-motion seeking summary judgment against Advantage should be denied.

With respect to Lourdes' cross-motion against SciFit, in the event liability at trial is found against Lourdes, then the cross-claims for indemnification and contribution between the parties would be triggered. Thus, Lourdes' cross-motion for summary judgment seeking to dismiss the cross-claim by SciFit against Lourdes is denied.

The court has considered the remaining arguments and finds them to be without merit.

In view of the foregoing, the court finds as follows:

1.SciFit's motion for summary judgment dismissing plaintiff's complaint, any cross-claims, and barring plaintiff's expert and report is DENIED;

2.Lourdes' motion for summary judgment dismissing plaintiff's complaint, any cross-claims, and barring plaintiff's expert and report is DENIED;

3.Advantage's cross-motion seeking summary judgment dismissing the third-party complaint should be GRANTED;

4.Lourdes' cross-motion for summary judgment against Advantage is DENIED;

5.Lourdes' cross-motion for summary judgment seeking to dismiss SciFit's cross-claim is DENIED; and

6.The court will consider at the time of trial the use of the adverse inference charge (PJI 1:77).

This constitutes the order of the court.

s/ Ferris D. Lebous