Upon the following NYSCEF Documents numbered 49 to 105 read on this motion and cross-motion by defendants for orders granting summary judgment pursuant to CPLR 3212 dismissing plaintiff's complaint and all cross-claims, or alternatively granting dismissal of plaintiff's complaint pursuant to CPLR 3211; defendant Simply Pilates, Inc.'s notice of motion and supporting papers: NYSCEF Docs.# 49-61; plaintiff's answering affirmation, affidavit and supporting papers: NYSCEF Docs.# 72-85; defendant Simply Pilates, Inc.'s affirmation in reply and supporting papers: NYSCEF Docs: # 102-103; defendant Melanie Quagliata's notice of motion and supporting papers: NYSCEF Docs.# 63-67; plaintiff's answering affirmation, affidavit and supporting papers: NYSCEF Docs.# 86-99; defendant Melanie Quagliata's affirmation in reply and supporting papers: NYSCEF Docs: # 104-105; it is,

ORDERED that defendant Simply Pilates, Inc.'s motion and defendant Melanie Quagliata's cross-motion for summary judgment and dismissal pursuant CPLR 3212 and dismissal pursuant to CPLR 3211 are denied.

This is an action brought by plaintiff Karyn Craft ("plaintiff") to recover damages for personal injuries she claims she sustained as a result of an accident on February 15, 2016 while she was engaged in a pilates exercise class at the pilates exercise facility owned and operated by defendant Simply Pilates, Inc. (" Simply") in Smithtown, Suffolk County, New York given by defendant Melanie Quagliata (" Quagliata"), an independent contractor engaged by Simply to provide the class. The class involved the use of a device referred to as a "horseback exercise device" or a "reformer," hereinafter referred to as "the device." Plaintiff alleges that she was injured during the course of the class when she was caused to fall from the device as a result of the negligence of Simply's agent Quagliata.

After depositions of the parties, and what Simply and Quagliata claim was the conclusion of all discovery, defendants filed their motion and cross-motion. The court notes that Quagliata filed no truly independent cross-motion, rather her papers on both her cross-motion and in reply to plaintiff's opposition thereto merely state that she relies upon the papers and arguments submitted by Simply to sustain her own position. Similarly, plaintiff's opposition to Quagliata' cross-motion is virtually a "word for word" submission of the same arguments and documents [*2]made in opposition to Simply's motion, with only a few changes to reflect that she is opposing Quagliata's cross-motion. Therefore, the court will address the issues raised in Simply's motion, which are equally applicable to Quagliata's cross-motion, and refer to both arguments as "defendants.' "

Before addressing defendants' motions, the court turns to two issues raised by plaintiff that do not directly address the merits of defendants' motions. The first is plaintiff's claim that the motions should not be considered as the unsigned copies of the depositions submitted in support of their motions are inadmissible hearsay as defendants have not established that the depositions had been mailed to the witnesses and not been responded to within 60 days as required. That argument is without merit. Although the deposition transcripts were unsigned, they were certified by the stenographers who took them, plaintiff has not challenged their accuracy, and, in fact, her counsel has relied upon them in opposing defendants' motions, therefore they are admissible (see Thomas v. City of New York, 124 AD3d 872 [2d Dept 2015]; Setter v. Fire Island Ferries, 139 AD3d 840 [2d Dept 2016]).

Plaintiff also raises the issue that discovery was not complete at the time of the motions, as there were outstanding discovery demands after the depositions which had not been responded to by Quagliata, therefore defendants' motions were premature and should be denied (CPLR 3212 [f]; see Singh v. Avis Rent A Car Sys., Inc., 119 AD3d 768 [2d Dept, 2014]; Williams v. Spencer-Hall, 113 AD3d 759 [2d Dept 2014]; Dyer Trust 2012-1 v. Global World Realty, Inc., 140 AD3d 827 [2d Dept 2016]). There appears to be some basis for this claim, as from a reading of the submissions and depositions it appears that the requested document, the "Core Pilates Manual" Quagliata received upon her certification as a pilates instructor, and which she claimed at her deposition she reviews to keep refreshed on proper techniques, had not been provided to plaintiff. Although it could be argued that the ability to review Quagliata's "Core Pilates Manual" to see her training on the proper use of the device was a material item of discovery, the court finds that this claim should not preclude it from considering defendants' motion. In making this decision the court takes notice that while these motions were pending, on September 16, 2019 the parties entered into a Compliance Conference Order, signed by the court, (NYSCEF Doc #106) certifying that all discovery was complete, that the case was ready to be certified for trial and that a note of issue was to be filed by plaintiff by October 25, 2019. The court presumes that plaintiff has either received the outstanding discovery requested in its post deposition demand to Quagliata, or has waived it. If plaintiff had received the manual since her opposition was filed, she could have sought to file supplemental opposition to include issues raised by that manual which plaintiff had been prevented from raising by Quagliata's tardy response. Whether plaintiff did not receive the manual or waived its production, Quagliata never produced it to support her argument that the device was used in a proper and safe manner based upon her training. Instead, by relying upon Simply's submission and testimony, Quagliata accepted the principles and techniques set forth in the certification manual supplied by Simply, the "Power Pilates Comprehensive Manual," the training manual used and referred to by Tracy Hebron ("Hebron") [*3]owner and operator of Simply upon her receiving a "Comprehensive Certification in Pilates" as a pilates instructor from Power Pilates. In doing so a significant question of fact was raised, as discussed below in denying defendants' motion for summary judgment.

Although not specifically stated by defendants in their submission, defendants motion to dismiss appears to be made pursuant to CPLR 3211(a) (5), resting upon their claim that the release signed by plaintiff upon entering into her contract for pilates classes, and use of the facility for exercising, with defendant Simply precludes her attempt at recovery for her injury. Defendants reliance is misplaced.

GOL § 5-326 makes agreements exempting owners and operators of pools, gymnasiums, places of public amusement or recreation and similar establishments from liability for negligence void as against public policy and wholly unenforceable. Despite defendants' attempt to characterize defendant Simply's facility, and plaintiff's use thereof, as "instructional" as opposed to "recreational," plaintiff's attendance is acknowledged by the parties to be for exercise and "core strengthening," not training in pilates for certification as a trainer or for competitive purposes; as such there is at least a question of fact raised as to the whether GOL § 5-326 is voided (see Fusco v. Now & Zen, 294 AD3d 466 [2d Dept 2002]). Such an activity is recreational, not instructional, unlike the self-defense training, scuba diving instruction or vehicle safety training which would make the voiding provisions of GOL § 5-326 inapplicable (see Jo Hsu v Krav Maga NYC, LLC, 138 AD3d 463 [1st Dept 2017]; Baschuk v. Diver's Way Scuba, Inc., 209 AD2d 369 [2d Dept 1994]; Boateng v. Motorcycle Safety School, Inc., 51 AD3d 702 [2d Dept 2008]). The court finds that defendants' reliance upon that portion of plaintiff's contract with defendant Simply that releases defendant Simply and its agents, such as defendant Quagliata, from their negligence is unenforceable.

When defendants claim to move for summary judgment dismissing plaintiff's action "on the basis that plaintiff has failed to establish a prima facie case of negligence as and against defendants;" they incorrectly state the standard applicable to their motions. It is defendants' burden to establish their freedom from negligence, plaintiff has no burden to establish her prima facie case unless she moves for summary judgment.

To warrant the granting of summary judgment dismissing plaintiff's complaint it must clearly appear that no material triable issues of fact remain (see Sillman v Twentieth Century-Fox Film Corp., 3 NY2d 395 [1957]). As the proponent of summary judgment, defendants must make a prima facie showing establishing as a matter of law entitlement to the relief by evidence in admissible form which eliminates any material issues of fact (see Winegrad v. New York University Medical Center, 64 NY2d 851[1985]; Gilbert Frank Corp. v. Federal Insurance, 70 NY2d 966[1988]; Torres v. Industrial Container, 305 AD2d 136 [1st Dept 2003]). Only once such proof has been offered, does the burden then shifts to plaintiff, who, in order to defeat the motion for summary judgment, must proffer evidence in admissible form to establish a factual [*4]issue sufficient to require a trial (CPLR 3212 [b]; see Zuckerman v City of New York, 49 NY2d 557 [1980]). Failure of the movant to meet its burden requires the denial of the motion regardless of the sufficiency of the opposition (see Jacobsen v. New York City Health & Hospital Corp, 22 NY3d 824 [2014]; William J. Jenack Estate Appraiser and Auctioneers v. Rabizadeh, 22 NY3d 470 [2013]). It has long been recognized as a general principle of summary judgment that a moving party, as well as an opponent, is required to assemble and lay bare all its proof in support, or opposition, of the motion (see Maurice O'Meara Co. v. National Park Bank of New York, 239 NY 386 [1925]; Dodwell & Co. Inc. v. Silverman, 234 AD 362 [1st Dept 1932]; M & S Mercury Air Conditioning Corp. v. Rodolitz, 24 AD2d 873 [2d Dept 1965]). Failure to do so is done at the party's risk, as movant bears the heavy burden of establishing a prima facie showing of entitlement to judgment as a matter of law, providing sufficient proof to demonstrate the absence of any material issue of fact (see Deleon v. New York City Sanitation Dept., 25 NY3d 1102 [2015]). In deciding the motion the court is to determine whether there are bonafide issues of fact and generally is not to delve into or resolve issues of credibility (see Vega v. Restani Corp., 18 NY3d 499 [2012]). Further, the court must consider the evidence in the light most favorable to the non-moving party and all reasonable inferences must be resolved in favor of the non-moving party (see Lamour v Decimus, 118 AD3d 851 [2d Dept 2014]).

Applying the above principles and giving such benefit to plaintiff, defendants have not met their burden to entitle them to summary judgment. Here, the evidence presented by both defendants and plaintiff, show questions of material facts essential to the resolution of this action which cannot be resolved at this juncture, necessitating denial of defendants' motions.

In support of their motions, inter alia, defendants submit the pleadings, plaintiff's bill of particulars, copies of defendants' original motion for summary judgment (Mot. Seq. #001) including plaintiffs submissions in opposition and all exhibits thereto including an affidavit from plaintiff, the court's decision denying Mot. Seq. #001, depositions of plaintiff, Quagliata and Hebron (deposed on behalf of Simply),as well as other documents that were exchanged during the course of discovery, including an unsworn or signed accident report containing the statement of a witness who participated in the class where plaintiff was injured. Among the documents submitted by plaintiff is part of the "Power Pilates Comprehensive Manual" issued to Hebron and referred to in her deposition testimony. Along with plaintiff's counsel's affirmation in opposition, plaintiff includes among other submissions another affidavit from plaintiff. In submitting items of evidence that would otherwise be inadmissible hearsay, without objection either in opposition or reply, the parties have waived any objection as to the admissibility of such evidence, and that evidence may be considered by the court in deciding the summary judgment motions (see Bank of New York Mellon v Gordon, 171 AD3d 197, 202 (2d Dept 2019).

In addition to their argument for dismissal pursuant to CPLR 3211(a) (5) above, defendants appear to claim that the doctrine of primary assumption of risk bars plaintiff's recovery as she assumed the obvious and inherent risks of the exercise activities she engaged in (see Turcotte v. Fell, 68 NY2d 432 [1986]; Morgan v State of New York, 90 NY2d 471 [ 1997]; Joseph v New York Racing Assoc., Inc., 28 AD3d 105 [2d Dept 2006]; Thomas v. Broadway Pilates, Ltd., 52 AD3d 232 [1st Dept 2008]). Defendants' claim that the doctrine of primary assumption of risk precludes any recovery by plaintiff is also misplaced. The facts submitted here make it clear that the doctrine of primary assumption of risk does not apply as a matter of [*5]law precluding recovery, rather the submissions raise questions of fact which instead indicate a situation where there is an issue of implied assumption of risk, which does not serve as an absolute bar to plaintiff's recovery. Implied assumption of risk may be considered by a trier of fact in determining the issues between the parties at trial (see PJI 2:55).

A key criteria for the application of the primary assumption of risk doctrine is the plaintiff's awareness of the risk of harm. Whether a person is aware of the particular risk of harm is to be assessed against her skill, background and experience with the activity (see Maddox v. City of New York, 66 NY2d 270 [1985]; Morgan v. State of New York, supra; Weinberger v. Solomon Schechter School of Westchester, 102 AD3d 675 [2d Dept 2013]). Here, the evidence as submitted by the parties shows that plaintiff has been a member of Simply since 2012, but last used the device in 2012 and the class during which she was injured was the first time she used the device since that time. The deposition testimony of Quagliata and plaintiff, as well as affidavits of plaintiff and a written statement from another instructor attending the class, show that plaintiff was unsuccessful in her first attempt at using the device under defendant Quagliata's instruction, saying she did not know how to use it. Quagliata had the other instructor demonstrate the use of the device for plaintiff, plaintiff then used the device one time without a problem, but on her second attempt she fell off the device and was injured. From this it appears that plaintiff was inexperienced in using the device at the time of her injury, was having a problem in doing so and that Quagliata recognized this. Under such circumstances the risks of the activity cannot be said to have been fully comprehended by plaintiff, perfectly obvious, known, or reasonably foreseeable; the duty owed to persons such as plaintiff is a duty to exercise care to make the conditions as safe as they seem to be (see Custodi v Town of Amherst, 20 NY3d 83, 88 [2012]).

On a claim of assumption of risk, whether plaintiff was aware of the risk can only be assessed against the background and skill of the particular plaintiff, and whether the risk was unreasonably increased by defendants (see Zelkowitz v. Country Group, Inc., 142 AD3d 424 [1st Dept 2016]). Unlike in Thomas v. Broadway Pilates, Ltd, supra, cited by defendants, where that plaintiff had used the device for five years and was aware of its use and the risks involved, here there was a question of fact as to her familiarity and use of the device, as the facts acknowledged by the parties show. Unlike the situation raised in DiBenedetto v. Town Sports, LLC, 118 AD3d 663 (2d Dept 2014), plaintiff was not using a device she was familiar with from her exercise activities.

Significantly, the deposition testimony indicates that there is at least a question of fact that Quagliata's conduct unreasonably increased the risk of injury to plaintiff. Both Quagliata and Hebron testified that after there certification as pilates trainers they regularly referred to the manuals they had received in their training to refresh them in regards to their activities (see Quagliata deposition, Defendants' Exhibit "F," p.57-58).

In her deposition (Defendants' Exhibit "E"), Hebron stated that she would have "spotted" a participant in a class which used the device, especially if they had not used the device before. In opposition to the motions, plaintiff submitted as her Exhibit "H" a portion of Hebron's "Power Pilates Comprehensive Manual" dealing with techniques for proper use of the device, which at pages 392-3 refers to the device as an "advanced technique" and not only describes the proper way to exercise with the device, but also provides instructions for "spotting" a person using the device; stating that someone should have a "Hand on lower back to give feedback on [*6]opposition." It is clear from all the evidence presented that no such spotting technique was employed by Quagliata, even though there was another participant in the class who could have performed such spotting.

At the time of the motions, Quagliata had not exchanged her "Core Pilates Manual," but she stated in her deposition testimony, referred to above, that it contained information on exercising with the device and had modifications for exercise on the device. She did not submit a copy of it when she relied upon Simply's submissions in support of her motion and in reply to plaintiff's opposition. Therefore, the only evidence before the court is Hebron's manual and testimony, which support plaintiff's claims.

There is a material question of fact raised as to defendants' duty to plaintiff by Quagliata's conduct in directing plaintiff's use of the device that, from the evidence presented, appears to be an advanced technique that plaintiff was unfamiliar and uncomfortable with, a fact the parties appear to admit was expressed to Quagliata, and that Quagliata enhanced the risk of plaintiff's fall from the device by failing to follow proper techniques in its use, specifically spotting, of which plaintiff was unaware. Therefore, the court must deny defendants' motions.

As a note of issue has been filed, the action is referred to the Calendar Control Part.

This constitutes the Order and decision of the Court.