| Oliver v Tanning Bed, Inc. |
| 2008 NY Slip Op 03263 [50 AD3d 1259] |
| April 11, 2008 |
| Appellate Division, Third Department |
| Sandra Oliver, Appellant-Respondent, v Tanning Bed, Inc., et al.,Respondents-Appellants. |
—[*1] Eustace & Marquez, White Plains (Heath A. Bender of counsel), forrespondents-appellants.
Mercure, J.P. (1) Cross appeals from an order of the Supreme Court (Relihan, Jr., J.), enteredNovember 14, 2006 in Broome County, which partially granted defendants' motion for summaryjudgment, and (2) appeal from an order of said court (Rumsey, J.), entered June 22, 2007 inBroome County, which denied plaintiff's motion to vacate or resettle the prior order.
Plaintiff alleges that after 18 minutes of tanning at defendants' salon, she suffered seconddegree burns over 65% of her body and was hospitalized twice. Plaintiff asserts that shedeveloped a back injury as a result of inactivity during the hospitalizations, requiring her to loseweight and necessitating gastric bypass surgery. Thereafter, plaintiff commenced this actionagainst defendants, alleging negligence, violation of the Federal Food, Drug, and Cosmetic Act(see 21 USC § 301 et seq.) and misrepresentation. Following joinder ofissue, defendants moved for, as relevant here, summary judgment dismissing the complaint.
In August 2006, Supreme Court (Relihan, Jr., J.) issued an oral decision partially grantingdefendants' motion and directing them to present a proposed order. Evidently, no stenographerwas present and the parties dispute which portions of the complaint were dismissed, withplaintiff asserting that the court did not dismiss her claims related to her dependency on pain[*2]medication, back injury and cancellation of back surgery.When plaintiff raised these objections before Supreme Court in a timely fashion after receiving anotice of settlement and a copy of a proposed order from defendants, the court informed her thatdefendants had not yet presented the order to it. In fact, however, the court had previously signedthe proposed order on November 2, 2006.[FN*]
Plaintiff, who remained unaware that the order was signed, asserts that defendants did notrespond to her requests for information regarding the status of the order until serving her with acopy of the order and notice of its entry on January 2, 2007, just after the assigned Justice retired.Plaintiff then moved to vacate the order on the ground that it was untimely submitted to the courtor for resettlement to correct the alleged inconsistency with the court's oral decision. SupremeCourt (Rumsey, J.) denied the motion to resettle on the ground that the court could not determinewhether the order deviated from the oral decision in the absence of any record of that decision.Plaintiff and defendants now cross-appeal from the November 2006 order and plaintiff appealsfrom the order denying her motion to vacate or resettle.
Upon their cross appeal, defendants argue that the complaint should be dismissed in itsentirety because plaintiff's conduct in consciously choosing to tan for a time period longer thanrecommended was the sole proximate cause of the incident. In the alternative, defendants arguethat they owed no duty to warn plaintiff because the risk of injury from tanning was open andobvious. We disagree.
Defendants concede that their tanning salon used stronger bulbs than other salons used, andthat it was defendants' policy to so warn all customers. Indeed, an employee of defendantsindicated in deposition testimony that if a customer insisted on exceeding the recommended timelimits, defendants required the customer to sign a waiver indicating that he or she was aware thatthe lamps were "much stronger than the lamps used at other tanning centers" and of "the definiterisk of serious sunburn." Although another of defendants' employees testified that plaintiff waswarned that she should tan for no more than 10 minutes and that she signed consent forms, suchforms are not contained in the record and plaintiff asserts that defendants' employee did not warnher in any respect.
In our view, defendants failed to establish prima facie that the hazard of sunburn presentedby their use of more intense tanning bulbs was open and obvious as a matter of law such that theyhad no duty to warn plaintiff (see Brady v Dunlop Tire Corp., 275 AD2d 503, 504-505[2000]; see also Soto v New York CityTr. Auth., 6 NY3d 487, 492 [2006]; cf. Tagle v Jakob, 97 NY2d 165, 169-170[2001]). Moreover, the conflicting accounts of whether plaintiff was appropriately warned createcredibility questions that cannot be resolved on a motion for summary judgment (seeRosenbaum v Camps Rov Tov, 285 AD2d 894, 895 [2001]). Furthermore, under thecircumstances presented, it cannot be said that plaintiff's conduct in choosing to tan for longerthan the recommended time was " 'unforeseeable . . . [and rose] to such [*3]a level of culpability as to replace the defendant[s'] negligence asthe legal cause of the accident' " (id. at 895 [citation omitted]; see Abair v Town of N. Elba, 35 AD3d935, 936 [2006]). Accordingly, Supreme Court properly declined to dismiss the complaint inits entirety.
With respect to plaintiff's appeal from the denial of her motion to vacate the initial order onthe ground that it was untimely submitted, we conclude that Supreme Court did not abuse itsdiscretion in accepting defendants' untimely submission of the order for signature (see 22NYCRR 202.48 [b]; Hoyt v Hoyt,18 AD3d 1055, 1058 [2005]). Regarding plaintiff's appeal from so much of the initial orderas granted defendants partial summary judgment dismissing the claims of dependency on painmedication and cancellation of back surgery, as well as her appeal from the denial of her motionto resettle, we note again that the parties cannot provide a transcript of Supreme Court's oraldecision and they dispute the scope of the dismissal of plaintiff's claims both in the oral decisionand in the order. Given the unique procedural posture of this case, lack of record of SupremeCourt's oral decision, the parties' failure to agree on which claims Supreme Court intended todismiss, and the retirement of the assigned Justice, we now reverse so much of the order asgranted defendants summary judgment on any claims other than those related to plaintiff's gastricbypass surgery. Defendants may file another motion for summary judgment within 60 days of thedate of this decision, if they be so advised.
In light of our decision, plaintiff's appeal from the denial of her motion to resettle is renderedacademic.
Spain, Rose, Lahtinen and Kavanagh, JJ., concur. Ordered that the order entered November14, 2006 is modified, on the law, without costs, by reversing so much thereof as granteddefendants' motion for partial summary judgment on any claims other than those related toplaintiff's gastric bypass surgery; motion denied to that extent; and as so modified, affirmed.Ordered that the order entered June 22, 2007 is affirmed, without costs.
Footnote *: The order granted defendantspartial summary judgment dismissing all claims with respect to the gastric bypass surgery,dependency on pain medication, cancellation of back surgery "and all alleged injuries and/ordamages for which the incident of August 11, 2001 is not a proximate cause."