| Colon v Chelsea Piers Mgt., Inc. |
| 2008 NY Slip Op 02951 [50 AD3d 616] |
| April 1, 2008 |
| Appellate Division, Second Department |
| Rose Colon et al., Appellants, v Chelsea PiersManagement, Inc., et al., Defendants, and Basketball City New York, LLC, et al.,Respondents. |
—[*1] Molod Spitz & DeSantis, New York, N.Y. (Marcy Sonneborn of counsel), forrespondents.
In an action to recover damages for wrongful death, etc., the plaintiffs appeal from an orderof the Supreme Court, Kings County (Lewis, J.), dated October 4, 2006, which granted themotion of the defendants Basketball City New York, LLC, and Basketball City, U.S.A., LLC, forsummary judgment dismissing the complaint insofar as asserted against them.
Ordered that the order is affirmed, with costs.
In 2002 the plaintiffs' decedent, who was 21 years old, suffered cardiac arrest and died whileplaying basketball at the premises of the defendants Basketball City New York, LLC, andBasketball City, U.S.A., LLC (hereinafter the defendants). In response to the defendants'demonstration of their entitlement to judgment as a matter of law, the plaintiffs failed to submitevidence sufficient to raise a triable issue of fact. The affidavit of the expert in the field ofrecreational industry, which was submitted by the plaintiffs solely to oppose the defendants'motion for summary judgment, was not admissible because the plaintiffs failed to identify theexpert during pretrial disclosure and served the affidavit after filing a note of issue and certificateof readiness attesting to the completion of discovery (see Safrin v DST Russian & Turkish Bath, Inc., 16 AD3d 656[2005]; Gralnik v Brighton BeachAssoc., 3 AD3d 518 [2004]). In any event, the expert's conclusory affidavit wasinsufficient to raise a triable issue of fact as to whether the defendants violated industry customby failing to provide, among other things, an automatic external defibrillator at their premises(see Putrino v Buffalo Athletic Club, 193 AD2d 1127 [1993], affd 82 NY2d 779[1993]). Moreover, the defendants had no [*2]statutory duty toprovide an automatic external defibrillator or personnel trained in cardio pulmonary resuscitationat the time of this incident. The statute imposing such a duty for a health club (assuming thisfacility fell within the definition of health club), did not become effective until July 20, 2005(see General Business Law § 627-a).
Additionally, the plaintiff failed to submit evidence sufficient to raise a triable issue of fact asto whether the defendants worsened the decedent's condition by failing to promptly call formedical assistance (cf. Butler v New York State Olympic Regional Dev. Auth., 292AD2d 748 [2002]). Skelos, J.P., Angiolillo, Leventhal and Belen, JJ., concur. [See 13Misc 3d 1221(A), 2006 NY Slip Op 51927(U).]