Gregory C. Miglino, Jr.,, Respondent,v.Bally Total Fitness of Greater New York, Inc., Appellant, et al., Defendant.BriefN.Y.January 3, 2013To be Argued by: JOHN V. DECOLATOR TIME REQUESTED: 30 MINUTES (!tnurt nf Appeals STATE OF NEW YORK GREGORY C. MIGLINO, JR., Executor of the Estate of Gregory C. Miglino, Sr., Deceased, - against- Respondent, BALLY TOTAL FITNESS OF GREATER NEW YORK INC., Defendant-Appellant, Dated: July 12, 2012 -and - BALLY TOTAL FITNESS CORPORATION, BRIEF FOR RESPONDENT SCOTT E. CHARNAS, ESQ. Attorney for Respondent By: JOHN V. DECOLATOR, ESQ. Appellate Counsel 1415 Kellum Place, Suite 209 Garden City, New York 11530 (516) 578-8212 (516) 747-4567 Facsimile Suffolk County Clerk's Index No. 07729/08 Press of Fremont Payne, Inc .• 55 Broad Street, Third Floor, New York, NY 10004 • (212) 966-6570 Defendant. TABLE OF CONTENTS TABLE OF AUTHORlTIES .......................................... ii QUESTIONS PRESENTED .......................................... 1 NATURE OF THE CASE ............................................ 2 COUNTER-STATEMENT OF FACTS AND PROCEEDINGS .............. 5 ARGUMENT I. THE APPELLATE DIVISION PROPERLY HELD THAT THE COMPLAINT STATES A COGNIZABLE CAUSE OF ACTION BASED UPON BALLY'S FAILURE TO USE ITS AED UPON THE DECEDENT ............................................ 8 II. BALLY IS NOT IMMUNE FROM LIABILITY UNDER NEW YORK'S GOOD SAMARITAN STATUTE ...................... 17 III. BALLY'S ASSUMPTION OF RISK ARGUMENT IS UNPRESERVED ............................................ 22 CONCLUSION ................................................... 23 TABLE OF AUTHORITIES Cases: Bingham v. NYCTA, 99 N.Y.2d 355 (2003) ............................ 22 Kaplan v. Dart Towing, 159 A.D.2d 610 (2d Dept., 1990) ................. 13 McDaniel v. Keck, 53 A.D.3d 869 (3d Dept., 2008) ................... 19,21 Misicki v. Caradonna, 12 N.Y.3d 511 (2009) ............................ 22 Mirza v. Metropolitan Life Ins. Co., 2 A.D.3d 808 (2d Dept., 2003) ......... 13 NaHan v. Helmsley-Spear, Inc., 50 N.Y. 507 (1980) ...................... 13 Palka v. Servicemaster Management Services Corp., 83 N.Y.2d 579 (1994) ... 15 Parvi v. City of Kingston, 41 N.Y.2d 553 (1977) ......................... 13 Ragucci v. Professional Construction Services, 25 A.D.3d 43 (2d Dept., 2005) 3, 8 Salvia v. Long Island Railroad, 207 A.D.2d 534 (2d Dept., 1994) ........... 19 State of New York v. Cities Service Co., 180 A.D.2d 940 (3d Dept., 1992) ... 3, 8 Tagle v. Jakob, 97 N.Y.2d 165 (2001) ................................. 15 Walsh v. Town of Cheektowaga, 237 A.D.2d 947 (4th Dept., 1997) .......... 13 Westchester County Society for Prevention of Cruelty to Animals v. Mengel 266 App Div 151, aff'd292 N.Y. 121 ................................. 3,8 Zappone v. Home Insurance Co., 55 N.Y. 131 (1982) ...................... 8 11 Statutes and Rules: General Business Law § 627-a ................................... passim McKinney's Cons Laws of NY, Book 1, Statutes § 145 .................... 8 Public Health Law § 3000-a ..................................... passim Public Health Law § 3000-b ...................................... 18-19 Legislative Materials: NY Assembly Memorandum in Support, Bill Jacket, L.2004, ch. 186 ....... 8-9 Memorandum in Support ofL.1998, ch. 552 .......................... 9,10 111 QUESTIONS PRESENTED 1. Is it anomalous to conclude that a statute which requires certain health club facilities to provide an Automated External Defibrillator ("AED") on the premises, as well as a person trained to use such a device, does not impose a concomitant duty to use that device should the need arise? The Appellate Division ruled in the affirmative, and plaintiff contends that this ruling was correct. 2. Does a health club's possession of an AED and an employee trained and certified in its use, along with the club's knowledge that vigorous exercise dramatically increases the likelihood that its own members will die of cardiac arrest, impose a duty to use the AED on a member who has suffered a cardiac arrest? The Appellate Division ruled in the affirmative, and plaintiff contends that this ruling was correct. 3. Should a health club whose employees failed to render first aid or emergency treatment to a stricken club member be shielded from liability for its actions by the Good Samaritan statute? The Appellate Division ruled in the negative, and plaintiff contends that this ruling was correct. 1 NATURE OF THE CASE Plaintiff-Respondent Gregory Miglino, Jr. ("plaintiff') respectfully submits this brief in response to the appeal of Defendant-Appellant, Bally Total Fitness of Greater New York, Inc. ("Bally") from the December 27,2011 Opinion and Order of the Appellate Division, Second Department. The Appellate Division had affirmed the trial court's denial of Bally's motion pursuant to CPLR 321 1 (a)(7) to dismiss the complaint for failure to state a cause of action. The complaint alleges that the decedent, Gregory Miglino, Sr., suffered a cardiac arrest at Bally's health club. As he lay on the floor, Bally's employees called 911, checked his pulse, retrieved an AED and placed it next to his body . Yet, the employee trained and certified in the use of that AED did not use it. As a result, Mr. Miglino died. Though Bally was required by statute- General Business Law § 627-a - to have an AED and someone trained in its use, Bally has taken the position that it had no concomitant duty to actually use the device. In interpreting a statute, a court must consider its "spirit, object, and 2 purpose."} A court should avoid a statutory interpretation that renders the provision meaningless or defeats its apparent purpose.2 In other words, a statute should be interpreted so as to avoid absurd results.3 In construing General Business Law § 627-a, the Appellate Division adhered to these sound principles. The Legislature's purpose in enacting the statute was to save the lives of health club members through the use of available AEDs. Though the statute does not explicitly state that the AED is to be used, the Appellate Division recognized the obvious: that, in the absence of a concomitant duty to actually use the AED, the statute's requirements are meaningless and its purpose cannot be fulfilled. The Appellate Division also correctly held that Bally may have had a common-law duty to use its AED under the circumstances. Mr. Miglino had suffered an apparent cardiac arrest at Bally's club. Bally had an AED on its premises and an employee trained in its use. Bally was well aware that the use of an AED can save the life of someone in cardiac arrest, that time is critical and I Westchester County Society for Prevention of Cruelty to Animals v. Mengel 266 App Div 151, 154-155, aff'd292 N.Y. 121. 2 State of New York v. Cities Service Co., 180 A.D.2d 940, 942 (3d Dept., 1992) 3 Ragucci v. Professional Construction Services. 25 A.D.3d 43 (2d Dept., 2005) 3 survival rates decline with every minute of delay in use of the AED. Having come to Mr. Miglino's assistance by calling 911 and taking his pulse, Bally may have had a duty to use its AED and attempt to save Mr. Miglino's life. Nor is Bally shielded by the Good Samaritan statute. Having failed to render any treatment to Mr. Miglino - particularly having failed to employ the very device that may have saved his life - Bally may not invoke the protections of a statute whose "overriding purpose" is to encourage individuals to help those in need, even when they are under no legal obligation to do so. 4 COUNTER-STATEMENT OF FACTS AND PROCEEDINGS The complaint alleges the following: on March 26, 2007, the plaintiffs decedent, Gregory Miglino, Sr., was a member of a Bally's health club; he suffered a cardiac arrest while at the health club; an employee of Bally's was informed that Mr. Miglino had collapsed near the club's racquetball court; Bally's had an Automated External Defibrillator ("AED") at the club; upon being informed that Mr. Miglino had collapsed, a Bally's employee retrieved the AED and brought it to where Mr. Miglino lay; however, Bally's employees negligently failed to use the AED or failed to use it within sufficient time to save Mr. Miglino's life, as a result of which Mr. Miglino died. (R.23-26)4 In June 2008 - prior to conducting any discovery - Bally's moved for an order pursuant to CPLR 321 I (a)(7) dismissing the complaint for failure to state a cause of action. Bally argued that it is immune from liability pursuant to Public Health Law § 3000-a (the so-called "Good Samaritan" statute). (R.IO-IS) In support of its motion, Bally's submitted the affidavit of Kenneth LaGrega, a Bally employee. (R.I6-I8) Mr. LaGrega stated that he was at the health club at the time of the incident and he was trained and certified in the 4 Numbers in parentheses refer to pages in the Record on Appeal. 5 operation of an AED. (R.17) When he learned of Mr. Miglino's collapse, he went to the scene and found Mr. Miglino lying on his back. He checked for and found a faint pulse. When he later returned to the scene he found that another employee had placed an AED next to Mr. Miglino. (R.17) He claimed that a medical doctor and medical student were attending to Mr. Miglino. (R.17) He did not state whether these two individuals were trained to use an AED. Though he stated that "shocks were thereafter administered to the decedent," (R.1S) he did not state precisely when, or by whom, those shocks were administered. In opposition to the motion, the plaintiff argued that the actions of Bally's employees were not shielded by the Good Samaritan statute because those actions did not constitute the "rendering of emergency treatment" needed to invoke the statute's protections; nor was the health club the kind of location covered by the statute as the club did, in fact, possess the necessary medical equipment, namely an AED. Moreover, Bally had not demonstrated that it is a Public Access Defibrillator Provider such that it is covered by the Good Samaritan statute in the context of AEDs; unshielded by the statute, Bally may be liable for its employees' negligence, and issues exist as to whether they were negligent in failing to use the AED under the circumstances. Finally, the plaintiff noted that Bally was in exclusive possession of much of the relevant evidence. (R.39-52) 6 By Order dated June 9, 2010, the Lower Court denied Bally's motion for dismissal. (R.6-8) In so ruling, the Court held that "the pleadings herein maintain causes of action cognizable at law." (R.8) The Appellate Division, Second Department affirmed the Lower Court's ruling by Opinion and Order dated December 27,2011. Noting that the purpose of General Business Law § 627-a was to increase the number of lives that could be saved through the use of AEDs at health clubs, the Court ruled that the statute "imposes an inherent duty to make use of the statutorily required AED ... " (R.170) The Court also ruled that the plaintiff had stated a cause of action based upon common-law negligence because, having come to the decedent's assistance, Mr. LaGrega may have been negligent in failing to use the AED. (R.171) 7 ARGUMENT POINT I THE APPELLATE DIVISION PROPERLY HELD THAT THE COMPLAINT STATES A COGNIZABLE CAUSE OF ACTION BASED UPON BALLY'S FAILURE TO USE ITS AED UPON THE DECEDENT. A. The Appellate Division correctly held that General Business Law § 627-a imposes an inherent duty to use the statutorily required AED. It is well-settled that "[A] court should avoid a statutory interpretation rendering the provision meaningless or defeating its apparent purpose." State of New York v. Cities Service Co., 180 A.D.2d 940,942 (3d Dept., 1992); see also, Zappone v. Home Insurance Co., 55 N.Y.2d 131,137 (1982); McKinney's Cons Laws of NY, Book 1, Statutes § 145. Put differently, in construing a statute, each part of a statute should be given meaning and be interpreted so as to avoid absurd results. Ragucci v. Professional Construction Services. 25 A.D.3d 43 (2d Dept., 2005). A court must consider the "spirit, the object, and purpose of the statute" in its interpretation. Westchester County Society for Prevention of Cruelty to Animals v. Mengel, 266 App Div 151,154-155, aff'd292 N.Y. 121. The Legislature's stated purpose in enacting GBL § 627 -a was to "ensure help to the health and safety of patrons of health clubs." (NY Assembly Memorandum 8 in Support, Bill Jacket, L.2004, ch. 186, at 4). To accomplish this purpose, the statute "would require health clubs to have at least one AED on the premises and at least one employee trained in the skills necessary for operation of an AED." rd. The Legislature's goals were supported by the facts. Sudden cardiac arrest ("SeA") kills over 300,000 people in the United States each year. See, Memorandum in Support of L.1998, ch. 552, amending section 3000-b of Public Health law. (R.53-55) It often strikes at places where people become excited or exert themselves; for example, studies have shown that the risk of SeA is nearly twenty (20) times higher during or immediately following vigorous exercise.s An AED is a lightweight portable device that is able to analyze a cardiac rhythm, determine whether a shock is necessary, and deliver a shock (defibrillation) to try to restore normal cardiac function. Time, however, is critical; studies have shown that the survival rate is as high as 90% when defibrillation is achieved within the first minute of collapse.6 Survival rates decline 7-10% with every minute that defibrillation is delayed and an seA victim without defibrillation beyond 12 minutes 5 See, Balady, Chaitman, Driscoll" et aI., American Heart Association/American College of Sports Medicine Joint Scientific Statement: Recommendations for Cardiovascular Screening, Staffing, and Emergency Policies at HealthJFitness Facilities. Circulation. 97: 2283-2293, 1998. (56-67) 6 See, Franklin, Bonzheim, Gordon and Timmis, Safety of medically supervised outpatient cardiac rehabilitation exercise therapy: a 16-year follow-up. Chest. 114:902-906, 1998 (68-74) 9 has only a 2-5% chance of survival.? Cardiopulmonary resuscitation (CPR) can be used to pump blood through the body, but it will not restart the heart. "The only effective way to treat cardiac arrest, and to restore the heart's pumping rhythm, is to quickly administer an electric shock with a defibrillator." Memorandum in Support, L.1998, ch.552, p.1949 (R.54) AEDs are safe, effective and easy to use. They now cost approximately $1500.00, are the size of a small attache case, and weigh about 5 pounds. They do not require the user to have any knowledge of electrocardiogram interpretation. The device will only deliver a life-saving shock if it determines that the patient is experiencing ventricular fibrillation. It is equipped with voice prompts that instruct the operator on what to do. The device also maintains a record, which pernlits a physician to review the patient's condition at a later time. (R.54) In 2002, the American College of Sports Medicine ("ACSM") and the American Heart Association ("AHA") issued a joint recommendation concerning AED placement in health clubs. The two groups "strongly recommended" that AEDs be placed in health clubs with over 2500 members.8 Then in 2006, the ACSM issued 7 See, American Heart Association and International Liason Committee on Resuscitation. Guidelines 2000 for Cardiopulmonary Resuscitation and Emergency Cardiovascular Care. Circulation. 102 (SuppI. 1): 160-76,2000. 8 See, Balady, Chaitman, Foster, et aI., American Heart Association/American College of Sports Medicine Joint Scientific Statement: Automated External Defibrillators in HealthlFitness 10 new mandatory standards requiring health clubs to have employees with certification in the use of AEDs and requiring clubs to have written policies for emergency response systems and procedures capable of handling emergency cardiac events. Significantly, one ofthe steps in those procedures is "attach/operate AED." (emphasis added) Merely having an AED and an employee trained in its use, however, does not accomplish the "laudatory purpose" of G.B.L. § 627-a; the device must actually be used when indicated. As the Appellate Division succinctly noted, "inasmuch as there is no dispute that General Business Law § 627-a requires certain health club facilities to provide an AED on the premises, as well as a person trained to use such device, it is anomalous to conclude that there is no duty to use the device should the need arise." (R.168-169) Bally argues that G .B.L. § 627 -a does not impose a duty to use the AED; rather, the statute is solely meant to encourage the club's employees to volunteer to use the device. In other words, the Legislature - expressly seeking to save the lives of health club members and recognizing that AEDs are an effective way to do so -- enacted a statute which requires health clubs to have an AED on the premises, to Facilities, Supplement to the AHA! ACSM Recommendations for Cardiovascular Screening, Staffing, and Emergency Policies at HealthlFitness Facilities. Circulation. 2002: 105: 1147-1150 (75-79) 11 always have in attendance an employee trained to use that AED, and to enter a "collaborative agreement" with an emergency health care provider, and amended another statute to partially immunize health clubs from liability arising from the use of the AED, in the mere hope that someone will actually use the device. With all due respect, such an interpretation is precisely the "absurd result" the courts are cautioned to avoid. Indeed, the events of March 26, 2007 form a perfect illustration of the absurd result created by Bally's interpretation of the statute: a health club member suffers an apparent cardiac arrest; a health club employee trained and certified in the use of an AED retrieves the device and places it next to the victim's prostrate body; the employee then leaves in the apparent hope that someone else - with adequate training in AED use and with sufficient compassion - will actually use the device in the next few critical minutes and save the victim's life; in fact, no such person does so and the victim dies.9 Bally also notes that the statute does not expressly state, "use the AED." On the contrary, the Legislature does not have the expertise to determine when the 9 Bally may argue that the only reason Mr. LaGrega did not use the AED is because he deferred to the doctor and medical student allegedly at the scene. Initially, whether these two individuals are even doctors, or had any training in the use of AEDs, are factual issues which cannot be resolved on a motion to dismiss. Nor are these issues germane to Bally's position in this appeal. Bally claims that GBL § 627-a does not impose a duty to use the device; Mr. LaGrega was thus free to walk away whether a doctor was present or not. 12 device is to be used. Use of the device may be contraindicated in some circumstances. The obvious intent is for a health club to have both an AED and someone with the training and knowledge to know how - and when - to use it. B. The Appellate Division correctly held that, under the circumstances, Bally may have owed the decedent a common-law duty to use the AED. It is well-settled that "even when no original duty is owed to the plaintiff to undertake affirmative action, once it is voluntarily undertaken, it must be performed with due care." Parvi v. City of Kingston, 41 N.Y.2d 553,559 (1977); see also, Nallan v. Helmsley-Spear. Inc., 50 N.Y.507, 522 (1980); Kaplan v. Dart Towing, 159 A.D.2d 610 (2d Dept., 1990); Mirza v. Metropolitan Life Ins. Co., 2 A.D.3d 808, 809 (2d Dept., 2003). Further, "this duty is cannot be fulfilled by placing the helpless person in a position of peril equal to that from which he was rescued." Parvi, supra at 559, citing Restatement [Second] of Torts sec. 324, comment g; see also, Walsh v. Town of Cheektowaga, 237 A.D.2d 947 (4th Dept., 1997). Even assuming Bally had no duty initially to assist Mr. Miglino, its employees did undertake affirmative action by calling 911, taking Mr. Miglino's pulse, retrieving the AED, and placing it next to his body. Bally was fully aware that 13 seA is a serious health problemlO, that vigorous exercise dramatically increases the likelihood of SeA, that its own members die as a result of SeA, that the use of an AED can save the life of someone in SeA, that time is critical and survival rates decline with every minute of delay in use of the AED, and that Mr. Miglino had apparently suffered an SeA. This knowledge - combined with the fact that Bally actually had an AED at the club and that Mr. LaGrega was apparently trained and certified in the use of that AED - imposed upon Mr. LaGrega a duty to employ that training and attempt to save Mr. Miglino's life by using the AED.ll By inexplicably failing to do so, Mr. LaGrega clearly left Mr. Miglino "in a position of peril equal to that from which he was rescued" and, at a minimum, an issue exists as to whether he exercised due care. In attempting to define the existence and scope of an alleged tortfeasor' s 10 In 2000, Bally disclosed to the AHA that at least 71 fatal cardiovascular events had occurred at their health clubs during 1997 and 1998. Since then, as the number of members of Bally's clubs has increased, the number of member cardiovascular fatalities has obviously also increased. 11 And Mr. Miglino's life may well have been saved. According to Dr. Gary Gabelman, a board-certified cardiologist, Mr. Miglino's heart had been in ventricular fibrillation - that is, cardiac arrest - for a protracted period oftime by the time the paramedics arrived and first used the AED. Dr. Gabelman opined that if the AED had, instead, been used within the first few minutes of Mr. Miglino's collapse, the device would have detected a "shockable rhythm" and would have delivered a shock to his heart. Given that survival rates are significantly higher when the shock is administered within the first few minutes, Dr. Gabelman believed that Mr. Miglino' s chances of survival would have been significantly higher if the AED had been used then. CR.I 00- 102, and see, Ambulance Record at R.I 03) 14 duty, this Court has stated that" 'whenever one person is by circumstances placed in such a position with regard to another that every one of ordinary sense who did think would at once recognize that if he [ or she] did not use ordinary care and skill in his [ or her] own conduct with regard to the circumstances he [or she] would cause danger of injury to the person or property of the other, a duty arises to use ordinary care and skill to avoid such danger.' "Palka v. Servicemaster Management Services Corp., 83 N.Y.2d 579,585 (1994), quoting Havas v. Victory Paper Stock Co., 49 N.Y.2d 381, 386. Thus, in determining whether a duty exists, a court must consider the reasonable expectations for the parties and society generally. Tagle v. Jakob, 97 N.Y.2d 165 (2001). Here, anyone "of ordinary sense" would recognize that if Bally's employees - specifically Mr. LaGrega - failed to use care and skill, they would cause danger to Mr. Miglino. And under the circumstances that prevailed on the subject morning, that care and skill may have required the use of the AED. As to why the AED was not used, Bally's counsel seemingly argued that Mr. LaGrega "determined that the medical doctor and medical student were more qualified to provide treatment ... " (R.14) This explanation, however, was thoroughly unsupported by Mr. LaGrega's own affidavit. He did not state that he made any effort to determine the qualifications of the two individuals who were attending to Mr. 15 Miglino, nor did he ever explain why he chose not to use the AED. (R.16-18) If the two individuals had instructed him not to use the AED, or indicated that they preferred to use it themselves, surely Mr. LaGrega would have said so. In fact, there is no evidence that the two individuals were even trained in the use of the AED. Of course, this presumes that the two individuals were even doctors/medical students. Mr. LaGrega did not provide their names or how he came to know that they were in the medical field. 12 Nor is there any evidence that these two individuals were even made aware of the presence of the AED. The Lower Court was apparently expected to simply accept his unsupported statement. And, of course, the plaintiff had not been afforded the opportunity to conduct any discovery to test the veracity of these allegations and see if these individuals were who Mr. LaGrega says they were. Most importantly, Mr. LaGrega failed to explain why he did not use the AED when he first observed Mr. Miglino. This occurred before the alleged doctor/medical student had even arrived. 12 He only provided those names later - and impermissibly - in an reply affidavit. (R.13 3) 16 POINT II BALLY IS NOT IMMUNE FROM LIABILITY UNDER NEW YORK'S GOOD SAMARITAN STATUTE. A. Bally is not immune from liability under the Good Samaritan provisions of G.B.L. § 627-a. G.B.L. § 627-a[3] provides that "any employee ... of the provider who ... renders emergency medical or first aid treatment using an AED ... shall be liable only pursuant to [Public Health Law § 3000-a]." Public Health Law § 3000-a[2], in tum, provides that "[A]n [entity that makes available an AED as required by law] . . . shall not be liable for damages arising either from the use of that equipment ... provided that this subdivision shall not limit the person's or entity's ... liability for his, her or its own negligence, gross negligence or intentional misconduct." Bally, of course, did not use the AED on the morning of the subject incident. As the Appellate Division correctly noted, then, the issue here is "not whether Bally was negligent in the course ofits use of the AED," but whether Bally had a duty under G.B.L. § 627-a to use the device in the first place. (R.170) Accordingly, "where, as here, the cause of action is based on the failure to employ the device, as opposed to the manner in which it was used," the Good Samaritan 17 provision ofG.B.L. § 627-a is not applicableY (R.170) Nor did Bally demonstrate that Mr. LaGrega qualified for immunity under the Good Samaritan Law. P .H.L. 3000-a shields only those persons who render emergency treatment "voluntarily and without expectation of monetary compensation." Mr. LaGrega was, presumably, a paid employee of Bally, among whose duties was to undergo training in the use of an AED and - we argue - to use the AED when the need arose. He was hardly the type of "volunteer" typically contemplated, and encouraged, by Good Samaritan laws. Bally also completely ignored the fact that merely having an AED on the premises and an employee trained to use it does not constitute full compliance with G.B.L. § 627-a. Pursuant to that statute, only if the health club is a "public access defibrillation provider" or "PADP" does it obtain any protection from P.H.L. 3000- a[2]. A PADP must possess and operate an AED pursuant to a collaborative agreement with an emergency health care provider, and that agreement must include written practice protocols, policies and procedures; a copy of the agreement must also be filed with the department of health and the "appropriate regional council." See, 13 For reasons that are not clear, the Court stated that G.B.L. § 627-a "does incorporate the provision of the Good Samaritan law requiring a showing of gross negligence when the statutorily required AED is used ... " (R.170) In fact, P.H.L. § 3000-a[2] clearly states that the statute does not limit the liability of such person's "negligence, gross negligence or intentional misconduct." (emphasis added) 18 P.H.L. 3000-b. Having failed to show that it met any of these requirements, Bally's failed to demonstrate its compliance with Section 627-a, and was not entitled to rely on that statute to claim Good Samaritan immunity under P.H.L. 3000-a[2]. B. Bally is not immune from liability under the Good Samaritan provisions of Public Health Law § 3000-a[I]. Pursuant to Public Health Law § 3000-a[I], a person who voluntarily renders "emergency treatment outside a hospital, doctor's office or any other place having proper and necessru:y medical equipment" shall not be liable for injuries or death resulting from that treatment unless such injuries or death was caused by the gross negligence of that person. (emphasis added) Bally's employees did not render emergency treatment to Mr. Miglino. By Bally's own admission, all its employees did was call 911, check Mr. Miglino's pulse, and place an AED next to him. This hardly constitutes "treatment." See, Salvia v. Long Island Railroad, 207 A.D.2d 534 (2d Dept., 1994) (PHL 3000-a "not implicated" where friend provided neither first aid nor emergency care to plaintiff, but merely placed him in truck, took him home, and later called ambulance). The "overriding purpose" ofthe Good Samaritan statute is to "encourage laypersons [and professionals] to help those in need, even when they are under no legal obligation to do so ... " McDaniel v. Keck, 53 A.D.3d 869, 872 (3d Dept., 19 2008). Merely placing an AED next to a person in cardiac arrest does not fulfill those purposes and, accordingly, does not invoke the need for the statute's protections. Indeed, application ofthe Good Samaritan statute here would discourage the rendering of emergency treatment. Generally, an individual who renders emergency treatment when not obligated to do so is shielded from liability for his or her negligence, but not gross negligence. P.H.L. § 3000-a[1]. In contrast, one who actually employs an AED is not shielded from his or her negligence in the use of the device. P.H.L. § 3000-a[2]. By permitting Bally - whose employee chose not to use the AED - to benefit from the gross negligence standard ofP.H.L.§ 3000-a[1], the courts would be shielding Bally from liability for not rendering potentially life-saving emergency treatment, thereby defeating the very purpose of the Good Samaritan statute. Of course, actually using the AED would have constituted treatment. P.H.L. § 3000-b[ 4] states that "[O]peration of an automated external defibrillator pursuant to this section shall be considered first aid or emergency treatment for the purposes of any statute relating to liability." (emphasis added) "Operation" does not include placing an AED next to a victim and then leaving. The Good Samaritan statute is further inapplicable because the subject emergency did not occur in one of the places contemplated by the statute, that is, 20 "outside a hospital, doctor's office or any other place having proper and necessary medical equipment." (emphasis added) Bally obviously had the "proper and necessary medical equipment": the AED. Bally even had an employee, Mr. LaGrega, who was apparently trained in the use of that equipment. Such circumstances can hardly be compared with those in which the Good Samaritan statute has been applied. See, McDaniel v. Keck, supra (plaintiff treated in farmhouse with no medical equipment except first-aid kit). It seems disingenuous of Bally to boast that its health club was equipped with an AED and a trained employee and then claim, in effect, that its club did not have the proper medical equipment so that it may benefit from the protections of the Good Samaritan statute. 21 POINT III BALLY'S ASSUMPTION OF RISK ARGUMENT IS UNPRESERVED. Bally argues that it is exempt from liability because Mr. Miglino assumed the risk of a cardiac arrest while performing a strenuous exercise. However, Bally raised this argument in neither the Lower Court nor the Appellate Division. Having been raised now for the first time here, the argument is unpreserved and need not be reviewed by this Court. See, Bingham v. NYCTA, 99 N.Y.2d 355, 359 (2003); Misicki v. Caradonna, 12 N.Y.3d 511, 524 (2009). Even if this Court were to consider Bally's assumption of risk argument, such would be meritless. G.B.L. § 627-a was enacted to address precisely the circumstances at issue here, that is, an individual who has suffered a cardiac arrest while engaged in strenuous exercise at a health club. Exempting a health club from liability because the individual assumed the risk of that cardiac arrest would eviscerate the statute and render its protections utterly meaningless. 22 CONCLUSION For the reasons set forth herein, the plaintiff respectfully requests that this Court affirm the Order of the Appellate Division and remit the action to the trial court for further proceedings. Dated: Garden City, New York July 12,2012 Respectfully submitt 5, -.. /.~---. /:/ HN . ECOLAT ~ Appellate Counsel to: CHARNAS LAW FIRM, P.C. Attorneys for Plaintiff-Respondent 1415 Kellum Place, Suite 209 Garden City, New York 11530 (516) 578-8212 23