| Kaplan v Roberts |
| 2012 NY Slip Op 00492 [91 AD3d 827] |
| Jnury 24, 2012 |
| Appellate Division, Second Department |
| Gary Kaplan et al., Plaintiffs, v Gordon Roberts,Defendant/Third-Party Plaintiff-Respondent. Equinox Holdings, Inc., Doing Business as EquinoxFitness Clubs, Third-Party Defendant-Appellant. |
—[*1] Goodrich & Bendish (Mauro Lilling Naparty LLP, Great Neck, N.Y. [Matthew W. Napartyand Anthony F. DeStefano of counsel]), for defendant/third-party plaintiff-respondent.
In an action, inter alia, to recover damages for sexual assault, the third-party defendantappeals, as limited by its brief, from so much of an order of the Supreme Court, WestchesterCounty (Liebowitz, J.), entered November 12, 2010, as denied those branches of its motionwhich were pursuant to CPLR 3211 (a) (7) to dismiss the fourth and fifth causes of action in thethird-party complaint, which sought to recover damages for breach of contract and negligence,respectively, for failure to state a cause of action, or, in the alternative, pursuant to CPLR 3211(c) and 3212 for summary judgment dismissing those causes of action.
Ordered that the order is reversed insofar as appealed from, on the law, with costs, thosebranches of the third-party defendant's motion which were pursuant to CPLR 3211 (c) and 3212for summary judgment dismissing the fourth and fifth causes of action in the third-partycomplaint are granted, and those branches of the third-party defendant's motion which werepursuant to CPLR 3211 (a) (7) to dismiss those causes of action for failure to state a cause ofaction are denied as academic.
The plaintiffs commenced this action against the defendant Gordon Roberts, inter alia, torecover damages for alleged sexual misconduct with the infant plaintiff. Roberts denied theallegations of sexual assault, and asserted counterclaims against the plaintiffs to recover damagesfor, among other things, malicious prosecution, slander, and abuse of process. Thereafter,Roberts commenced a third-party action against Equinox Holdings, Inc., doing business asEquinox Fitness Clubs (hereinafter Equinox), the owner of the fitness club where the allegedabuse occurred. Roberts maintained that the underlying allegations were false, insisted that thefalse allegations led to a false prosecution, onerous bail terms, and defamation of character, andalleged that the actions of the child were the direct result of the child's unsupervised andunrestricted access to the fitness club. Citing a provision in Equinox's "member policies"concerning the use of the facility by children, he asserted, inter alia, causes of action to recoverdamages for breach of contract and negligence against [*2]Equinox.
Equinox moved pursuant to CPLR 3211 (a) (7) to dismiss the third-party complaint, or, inthe alternative, pursuant to CPLR 3211 (c) and 3212 for summary judgment dismissing thethird-party complaint. In the order appealed from, the Supreme Court, inter alia, denied thosebranches of Equinox's motion which were pursuant to CPLR 3211 (a) (7) to dismiss the fourthand fifth causes of action in the third-party complaint, or, in the alternative, pursuant to CPLR3211 (c) and 3212 for summary judgment dismissing those causes of action. The Supreme Courtstated, among other things, that Roberts should be afforded a "reasonable opportunity to conductdiscovery prior to the determination of a motion for summary judgment." Equinox appeals, andwe reverse the order insofar as appealed from.
At the outset, although the Supreme Court did not give "adequate notice to the parties" that itwould treat the defendant's motion as one for summary judgment (CPLR 3211 [c]), where, ashere, a specific request for summary judgment was made and the parties " 'deliberately chart[ed]a summary judgment course' " (Mihlovan v Grozavu, 72 NY2d 506, 508 [1988], quotingFour Seasons Hotels v Vinnik, 127 AD2d 310, 320 [1987]), the court was authorized totreat Equinox's motion as one for summary judgment (see Burnside 711, LLC v Nassau Regional Off-Track Betting Corp., 67AD3d 718, 720 [2009]).
Furthermore, the Supreme Court should have granted that branch of Equinox's motion whichwas pursuant to CPLR 3211 (c) and 3212 for summary judgment dismissing the fourth cause ofaction in the third-party complaint, which sought to recover damages for breach of contract.When the parties' intent to be bound by a contractual obligation "is determinable by writtenagreements, the question is one of law," which can be resolved by the court on a motion forsummary judgment (Mallad Constr. Corp. v County Fed. Sav. & Loan Assn., 32 NY2d285, 291 [1973]; see ADCO Elec. Corp.v HRH Constr., LLC, 63 AD3d 653, 654 [2009]; German Masonic Home Corp. vDeBuono, 295 AD2d 312, 313 [2002]). "A question of fact arises as to the parties' intent toenter into an enforceable obligation '[o]nly where the intent must be determined by disputedevidence or inferences outside the written words of the instrument' " (ADCO Elec. Corp. vHRH Constr., LLC, 63 AD3d at 654, quoting Mallad Constr. Corp. v County Fed. Sav. &Loan Assn., 32 NY2d at 291).
Here, even assuming that the "member policies" constituted binding contracts betweenEquinox and each of its individual members, Equinox established, prima facie, that the provisiontherein concerning use of the facility by children was clear and unambiguous, and did not createany obligation on the part of Equinox to ensure that Roberts would be protected against any andall dangers potentially posed by another member's failure to properly supervise his or her children(see Mallad Constr. Corp. v County Fed. Sav. & Loan Assn., 32 NY2d at 292;German Masonic Home Corp. v DeBuono, 295 AD2d at 313; Berghold vKirschenbaum, 287 AD2d 673, 673 [2001]). In opposition, Roberts failed to raise a triableissue of fact. Accordingly, the Supreme Court should have granted that branch of Equinox'smotion which was for summary judgment dismissing the fourth cause of action in the third-partycomplaint.
The Supreme Court also should have granted that branch of Equinox's motion which waspursuant to CPLR 3211 (c) and 3212 for summary judgment dismissing the fifth cause of actionin the third-party complaint, which sought to recover damages for negligence. A property owner,or one in possession or control of property, "has a duty to take reasonable measures to control theforeseeable conduct of third parties on the property to prevent them from intentionally harmingor creating an unreasonable risk of harm to others" (Hillen v Queens Long Is. Med. Group, P.C., 57 AD3d 946, 947[2008]; see Millan v AMF BowlingCtrs., Inc., 38 AD3d 860, 860-861 [2007]). This duty arises when there is an ability andan opportunity to control such conduct, and an awareness of the need to do so (see Hillen vQueens Long Is. Med. Group, P.C., 57 AD3d at 947; Jaume v Ry Mgt. Co., 2 AD3d590, 591 [2003]; Cutrone v Monarch Holding Corp., 299 AD2d 388, 389 [2002]). Insupport of this branch of its motion, Equinox submitted evidence demonstrating, prima facie, thatit did not have the ability and opportunity to control the conduct at issue through the exercise ofreasonable measures, and that it had no awareness of the need to control the conduct of the child(see Hillen v Queens Long Is. Med. Group, P.C., 57 AD3d at 947; Jaume v Ry Mgt.Co., 2 AD3d at 591; Lazar v TJXCos., 1 AD3d 319, 319 [2003]). In opposition, Roberts failed to raise a triable issue offact (see Hillen v Queens [*3]Long Is. Med. Group, P.C.,57 AD3d at 947; Victor C. v Lazo,30 AD3d 365, 367 [2006]). Accordingly, the Supreme Court should have granted thatbranch of Equinox's motion which was for summary judgment dismissing the fifth cause ofaction in the third-party complaint.
Contrary to the Supreme Court's determination, there is no basis to believe that factsnecessary to properly oppose the motion for summary judgment would be uncovered throughdisclosure (see Gabrielli Truck Sales v Reali, 258 AD2d 437, 438 [1999]; Glassman vCatli, 111 AD2d 744, 745 [1985]).
In light of our determination, we need not reach the parties' remaining contentions. Florio,J.P., Belen, Roman and Sgroi, JJ., concur.