| Alqurashi v Party of Four, Inc. |
| 2011 NY Slip Op 08716 [89 AD3d 1047] |
| November 29, 2011 |
| Appellate Division, Second Department |
| Rami Alqurashi, Respondent, v Party of Four, Inc., DoingBusiness as Sunrise Fitness Center, Appellant. |
—[*1] Thomas J. Stock, Mineola, N.Y. (Victor A. Carr of counsel), for respondent.
In an action to recover damages for personal injuries, the defendant appeals from an order of theSupreme Court, Suffolk County (Tanenbaum, J.), dated November 17, 2010, which denied its motionfor summary judgment dismissing the complaint.
Ordered that the order is affirmed, with costs.
The plaintiff allegedly sustained personal injuries while he was exercising at the defendant's gymwith what he described as a set of 140-pound dumbbells, consisting of seven 10-pound metal plates oneach side of a metal bar. The doctrine of primary assumption of risk provides that a voluntaryparticipant in a sporting or recreational activity "consents to those commonly appreciated risks whichare inherent in and arise out of the nature of the sport generally and flow from such participation"(Morgan v State of New York, 90 NY2d 471, 484 [1997]). However, the doctrine will notserve as a bar to liability if the risk is unassumed, concealed, or unreasonably increased (see Demelio v Playmakers, Inc., 63 AD3d777 [2009]; Fithian v Sag Harbor UnionFree School Dist., 54 AD3d 719 [2008]; Sauray v City of New York, 261 AD2d601 [1999]).
Here, the defendant failed to establish, prima facie, that the plaintiff assumed the risk of the injuryherein. Contrary to the defendant's contention, the evidence did not establish that the plaintiff simply losthis grip and dropped the 140-pound dumbbell from his right hand onto his toes. According to theplaintiff's deposition testimony, he picked up a set of 140-pound dumbbells from the bottom rackwhere they were stored, and as he attempted to lift the dumbbell in his right hand, two of the metalplates came loose from the metal bar and fell on him. As a result, he lost his balance and dropped thedumbbell.
In addition, the defendant's president testified that all of the dumbbells were secured with a boltwhich was about 1½ to 2 inches deep, and that to adjust the weight on the dumbbells, one had touse a so-called Allen key to screw and unscrew the bolt. Significantly, the president further testified thathe was the only person who adjusted weights on the dumbbells, that gym employees [*2]had the responsibility to re-rack and inspect the dumbbells to insure thatthe screws were tight, and that members were not allowed to remove or add weights to the dumbbells.Given the president's statements regarding the defendant's control over the instrumentality which causedthe injury, and viewing all of the evidence in a light most favorable to the plaintiff, as we must (see Guerra v Cantos, 38 AD3d 714[2007]), it cannot be said as a matter of law that the plaintiff assumed the risk of the injury whichoccurred by voluntarily engaging in the activity of weightlifting (see Demelio v Playmakers, Inc., 63 AD3d 777 [2009]; Fithian v Sag Harbor Union Free SchoolDist., 54 AD3d 719 [2008]; Sauray v City of New York, 261 AD2d 601 [1999];cf. Lee v Maloney, 270 AD2d 689 [2000]).
The defendant's remaining contention is without merit.
Accordingly, the defendant's motion for summary judgment dismissing the complaint was properlydenied (see generally Alvarez v Prospect Hosp., 68 NY2d 320 [1986]). Skelos, J.P., Balkin,Eng and Sgroi, JJ., concur.