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: BRIAN P. HEERMANCE (Time Requested: 30 Minutes) Suffolk County Clerk’s Index No. 07729/08 Appellate Division, Second Department Docket No. 2010-06556 Court of Appeals of the State of New York GREGORY C. MIGLINO, JR., Executor of the Estate of Gregory C. Miglino, Sr., deceased, Plaintiff-Respondent, – against – BALLY TOTAL FITNESS OF GREATER NEW YORK INC., Defendant-Appellant, – and – BALLY TOTAL FITNESS CORPORATION, Defendant. BRIEF FOR DEFENDANT-APPELLANT MORRISON MAHONEY LLP 17 State Street, Suite 1110 New York, New York 10004 Tel.: (212) 825-1212 Fax: (212) 825-1313 Attorneys for Defendant-Appellant and Defendant Dated: May 24, 2012 STATE OF NEW YORK COURT OF APPEALS --------------------------------------------------------------------)( GREGORY C. MIGLINO, JR., E)(ECUTOR OF THE ESTATE OF GREGORY C. MIGLINO, SR., DECEASED Plaintiff-Respondent -against- BALLY TOTAL FITNESS OF GREATER NEW YORK INC., Defendant-Appellant and BALLY TOTAL FITNESS CORPORATION Defendant. ---------------------------------------------------------------------)( TO THE HONORABLE COURT: CORPORATE DISCLOSURE STATEMENT Pursuant to Rul~ SOO.l(f) of the }Jew York State Court of Appeals, defendant- appellant BALLY TOTAL FITNESS OF GREATER NEW YORK hereby submits its Corporate Disclosure Statement as follows: I. As to BALLY TOTAL FITNESS OF GREATER NEW YORK, the following constitutes a complete and known list of parent, subsidiary and affiliate corporations: PARENT COMPANIES: Bally Total Fitness Corporation AFFILIATE COMPANIES: Bally Total Fitness Franchising, Inc. Bally Total-Fitness Holding Corporation Bally Total Fitness of California, Inc. 985003vl Bally Total Fitness of the Mid-Atlantic, Inc. Bally Total Fitness of Greater New York, Inc. Lincoln Indemnity Company Bally Total Fitness of the Midwest, Inc. BTF Canada Corporation Bally Matrix Fitness Centre Ltd. Bally TMA Korea Co BTF RE Corporation SUBSIDIARY COMPANIES: None. Dated.: New York, New York March 22,2012 985003vl Yours etc., MORRISON MAHONEY LLP Attorneys for Defendant-Appe11ant BALLY TOTAL FITNESS OF GREATER NEW YORK, INC., And non-party dismissed defendant BALLY TOTAL FITNESS CORPORATION By:~~ mi pho eous, Esq. 17 State Street - Suite Ill 0 New York, NY 10004 (212) 825-1212 ~-. .. cc: 985003vl John Decolator, Esq. Trial Counsel for SCOTT E. CHARNAS, ESQ. CHARNAS LAW FIRM, P.C. 1415 Kellum Place, Suite 209 Garden City, NY 11530 Scott E. Chamas, Esq. SCOTT E. CHARNAS, ESQ. Attorneys for Plaintiff 455 East 51st Street New York, New York 10022 TABLE OF CONTENTS PRELIMINARY STATEMENT ............................................................................................ ! QUESTIONS PRESENTED ..................................................................................... 5 STATEMENT OF JURISDICTION ......................................................................... 6 STATEMENT OF THE FACTS ............................................................................. l2 LEGAL ARGUMENT ............................................................................................ 13 I. PLAINTIFF ASSUMED THE RISK OF CARDIAC ARREST WHEN HE ENGAGED IN STRENUOUS PHYSICAL ACTIVITY AT THE DEFENDANT'S HEALTH CLUB .............................................................. 13 II. DEFENDANT IS IMMUNE FROM LIABILITY UNDER NEW YORK'S GOOD SAMARITAN STATUTE .......................................................................... 15 III. DEFENDANT HAD NO LEGAL DUTY TO USE AN AED AND, THEREFORE, PLAINTIFF'S COMPLAINT FAILS TO STATE A VIABLE CAUSE OF ACTION ............................................................................... 18 CONCLUSION ....................................................................................................... 25 i TABLE OF AUTHORITIES State Court Cases Pages Chappill v. Bally Total Fitness Corp, (2011 NY Slip Op 30146(u) (20 11) ................................................................................................. 14, 18 DiGiulio v. Gran, Inc., 17 NY3d 765 (2011) ................................. 7, 8, 22, 23, 24 Janssen v. Incorporated Village of Rockville Centre, 59 AD3d 15, 869 NYS2d 572 (2d Dept 2008) ..................................................................... 21 McDaniel v. Keck., 53 AD3d 869, 861 NYS2d 516 (3d Dept 2008) ................... 1 Morgan v. State, 90 NY2d 471, 662 NYS2d 421 (1997) ....................................... 13 Plutner v. Silver Associates, 186 Misc. 1025, 61 NYS2d 594, (Mun Ct, New York County 1946) ............................................................................... 1 Putrino v. Buffalo Athletic Club 193 AD2d 1127, 598 NYS2d 648 (4th Dept 1993) ........................................................................................ 18 Rutnik v. Colonie Center Court Club, Inc., 249 AD2d 873, 672 NYS2d 451 (3d Dept 1998) ............................................................... 13, 18 Vucetovic v. Epsom Downs, Inc., 10 NY3d 517 (2008) ..................................... 20 Federal Court Cases Brown v. Barry, 3 US 365 (1797) ........................................................................ 20 Statutes and Regulations Civil Practice Laws and Rules ("CPLR") § 5602 .......................................... 6, 11 General Business Law § 627 ...................................................................... Passim Public Health Law § 3000 .......................................................................... Passim 11 42 U.S.C. § 238q ................................................................................................. 20 Secondary Sources McKinneys Constitutional Laws ofNew York, Book 1 § 94 ........................ 20, 21 McKinneys Constitutional Laws ofNew York, Book 1 § 231 ...................... 20, 21 4 N.Y. Jur.2d Appellate Review§ 294 (1997), .................................................... 6 Proesser & Keeton, Torts (5th ed) ..................................................................... 13 lll PRELIMINARY STATEMENT Generally, unless a special relationship exists, there 1s no legal duty to render aid or assistance to another in peril. 1 Although "there may be a strong moral and humanitarian obligation to furnish such aid and assistance under ordinary circumstances, ... our courts have held that there is no legal responsibility" to do so.2 This is precisely why the "Good Samaritan" statute (Public Health Law §3000-a) was enacted in New York and numerous other states. An overriding purpose of Good Samaritan statutes is to encourage laypersons and professionals to help those in need, even when they are under no legal obligation to do so, by providing immunity from liability claims arising out of a voluntary attempt to assist a person in peril.3 Of course, the New York Good Samaritan statute does not shield doctors or other medical personnel from liability, nor does it protect those who were grossly negligent in their rendering of emergency medical assistance from liability. 4 Like other public places, since health clubs and their employees do not fall under the specific exceptions articulated in the statute, they too enjoy the Plutner v. Silver Associates, 186 Misc. 1025, 1027, 61 NYS2d 594, 595 (Mun Ct, New York County 1946). 2 !d. 3 McDaniel v. Keck, 53 AD3d 869, 861 NYS2d 516 (3d Dept 2008). 4 See, Public Health Law §3000-a. 1 protections afforded by the Good Samaritan statute.5 To find otherwise, would render the statute meaningless. A similar protection from liability exists in various State Good Samaritan Automated External Defibrillator ("AED") laws. In New York, General Business Law §627-a requires every health club whose membership is 500 persons or more to have at least one AED on premises and at least one individual certified to perform CPR and use an AED. Just like New York's Good Samaritan statute, absent a showing of gross negligence, General Business Law §627 -a shields a health club and its employees from liability when "voluntarily" rendering emergency medical or first aid treatment. In this case, Plaintiff Gregory Miglino was a patron of Defendant Bally Total Fitness of Greater New York ("Defendant")6 health club located in Lake Grove, New York. Miglino suddenly collapsed while engaged in physical activity at or near the racquetball courts. (R. 23-27). At the time of Plaintiff's collapse, Defendant maintained at least one AED on its premises and had at least one certified CPR/ AED employee on duty. (R. 17). When Plaintiff collapsed, Defendant's employees responded by immediately calling 911 and bringing the 5 See, Public Health Law §3000-a. 6 In its Decision dated December 27,2011 and entered December 30, 2011, The Second Department correctly dismissed all causes of action asserted against defendant Bally Total Fitness Corporation. (R. 171-172). 2 AED to Plaintifr s side, and saw to it that Plaintiff was monitored by a medical doctor and a medical student. (R. 17, 24). Because the Defendant satisfied its statutory obligation to have an AED and a properly certified employee on premises, and because the plaintiff failed to plead that Defendant was grossly negligent in the rendering of emergency care, Defendant is protected from liability under both Public Health Law §3000-a and General Business Law §627-a. Therefore, Defendant filed a motion seeking the dismissal ofPlaintifrs Complaint. In a decision dated June 9, 2010, the lower court denied Defendant's motion to dismiss and Defendant appealed from that decision to the Appellate Division, Second Department. (R. 2-9). In its decision dated December 27, 2011, the Second Department erroneously found that although General Business Law §627-a does not explicitly state that health clubs are obligated to use AEDs, the statute gives rise to a cause of action sounding in negligence - based upon failure to use the AED. (R. 162). In doing so, the Second Department ignored the fact that, because General Business Law §627-a is in derogation of the common law, it was required to strictly construe the statute. It has now fallen to this Court to bring about a final resolution in this matter; to clearly articulate the precise duties a health club owes its patrons when a medical emergency occurs. Specifically, this Court must determine whether a 3 health club that fully complied with the express statutory requirements of General Business Law §627-a was also required to use an AED, when there is nothing at common law or in the plain language of the statute setting forth any such duty. 4 QUESTIONS PRESENTED (1) Is Defendant, a health club, immune from liability under the New York State Good Samaritan Statute? The Appellate Division ruled in the negative, and Defendant contends that this ruling was erroneous. (2) Did Defendant, a health club, satisfy its duty to Plaintiff, a patron, by having an accessible AED on the premises at the time of Plaintifr s collapse, and an employee who was certified in AED usage? The Appellate Division ruled in the negative, and Defendant contends that this ruling was erroneous. (3) Should General Business Law §627-a be strictly construed since it derogates the common law? The Appellate Division ruled in the negative, and Defendant contends that this ruling was erroneous. 5 STATEMENT OF JURISDICTION Pursuant to CPLR 5602(b )(1 ), Defendant was granted leave to appeal to this Court from the non-fmal order via Order of the Appellate Division, Second Department, dated March 19, 2012, with Notice of Entry dated March 20, 2012. (R 158-160). Specifically, the Order granted to defendant leave to appeal to this Court from the opinion and order of the Appellate Division, Second Department order dated December 27,2011. (R 162). This court has jurisdiction over this matter and is the proper venue for the questions of law to be litigated as the issues presented herein fall within several of the qualities a case must present. These are: (a) The case has settled a principle that may affect numerous other cases; or (b) The case conflicts directly with prior rulings by the Appellate Division or the Court of Appeals; or (c) The case construes or interprets a public statute; or (d) The case affects a large public interest or is of public importance; or (e) The case presents a question of law that is novel or unique. 7 7 4 N.Y. Jur.2d Appellate Review,§ 294 (1997). 6 This case falls into at least four of the above qualifications. At the outset, the Appellate Division interpreted a public statute and that decision stands to effect General Business Law §627-a by misconstruing and creating an implied duty for health clubs to use AEDs. Such a duty does not exist either by statute or at common law. Furthermore, this case stands to effect the business population and public in this matter as the Appellate Division's finding that health clubs have an implied duty to use AEDs will not only affect all other pending cases involving AEDs in health clubs, but it will also open the floodgates to multiple new claims that would otherwise not be viable. The Appellate Division's decision also directly conflicts with a pnor decision of this court. DiGiulio v. Gran, Inc., 17 N.Y.3d 765 (2011). In DiGiulio, the defendant health club did not even access the AED it had on premises, yet the Court of Appeals ruled that the plaintiff failed to demonstrate that the health club employees' failure to access the AED was "grossly negligent." In reaching that decision, the Court of Appeals cited both General Business Law §627-a(3) and Public Health Law §3000-a, both of which require a showing of gross negligence in order for defendant health club to be found liable. The Court of Appeals also ruled that the defendant health club did not breach any common law duty to render aid to Mr. DiGiulio. In the instant case, Defendant's employee did retrieve the 7 AED and brought it to Mr. Miglino' s side, but when he got there, Mr. Miglino was already being assisted by two other members who happened to be a doctor and medical student. To hold Defendant liable under the facts of this case is inconsistent with the Court of Appeals decision in DiGiulio. Finally, if the Appellate Division's decision in this case stands, it would inevitably affect operators of other public places who are governed by similar AED statutes, essentially stripping them of their protections provided by the Good Samaritan statutes. This would have the detrimental effect of discouraging people, in general, from voluntarily providing emergency medical services, contrary to the very reason for the enactment of the Good Samaritan statutes. The questions of law were preserved while this matter was still in its infancy. As to question 1, "Is Defendant, a health club, immune from liability under the New York State Good Samaritan Statute?" defendant originally interposed affirmative defense number three, claiming immunity under the NY Public Health Law in its Verified Answer dated April 8, 2008 (R. 32). Defendant further preserved this argument in its Affirmation in support of the original Motion to Dismiss in the lower court dated June 23, 2008 (R. 15). Plaintiff brought this matter into dispute and raised the question of law in its original Affirmation in opposition to defendant's motion dated September 5, 2008 (R. 42-44). Defendant further raised the issue in its reply papers dated September 11, 2008 (R. 112). The 8 issue in dispute was addressed in the lower court's decision dated June 9, 2010 (R. 7) and examined in detail in the Appellate Division's decision dated December 27, 2011 (see generally R. 162-172). As to question 2, "Did Defendant, a health club, satisfy its duty to Plaintiff, a patron, by having an accessible AED on the premises at the time of Plaintifr s collapse, and an employee who was certified in AED usage?" plaintiff preserved that the AED was on site in its verified complaint dated February 20, 2008(R. 23). The question of law regarding whether having an accessible AED on site and its satisfaction of the statute was brought to light in plaintiffs complaint dated February 20, 2008 (R. 24, 26), defendant preserved its defense in denying the allegations in its verified answer dated April 8, 2008 (R. 30-31 ). Defendant further preserved the issue in its Affirmation in Support of the lower court's motion to dismiss (R. 14-15). Plaintiff brought this matter into dispute and raised the question of law in its original Affirmation in opposition to defendant's motion dated September 5, 2008 (R. 40-41). Defendant further addressed this issue in its reply papers dated September 11, 2008 (R. 109-11 0). This issue in dispute was addressed in the lower court's decision dated June 9, 2010 (R. 6-7) and examined in detail in the Appellate Division's decision dated December 27, 2011 (see generally R. 162-172). 9 As to question 3, "Should General Business Law §627-a be strictly construed since it derogates the common law?" the broad issue was again brought to light in plaintiff's complaint dated February 20, 2008 (R. 24, 26), defendant preserved its defense in denying the allegations in its verified answer dated AprilS, 2008 (R. 30-31 ). Plaintiff further brought the issue into dispute in its Affirmation in opposition to defendant's motion dated September 5, 2008 (R. 45-46), defendant preserved the issue in dispute in its reply papers dated September 11, 2008 (R. 109-111). This issue in dispute was addressed in the lower court's decision dated June 9, 2010 (R. 6) and examined in detail in the Appellate Division's decision dated December 27,2011 (see generally R. 162-172). Finally, defendant also preserved its defense against the cause of by asserting that it is immune from Liability under the terms of the N.Y. Public Health Law 3000-a (R. 32) and further raised and preserved the argument that failed to state a cause of action in its Affirmation in support of the original motion to dismiss (see generally R. 12-15). Defendant further preserved the argument in its reply papers dated September 11, 2008 (see generally R. 105-113). The matter was addressed in detail in the lower court's decision dated June 9, 2010 (R. 6-8) and further analyzed in the Appellate Division's decision dated December 27, 2011 (see generally R. 162-172). 10 As demonstrated above, this matter is properly before this court pursuant to the Appellate Division's order granting leave to appeal under CPLR 5602(b)(l) as this case not only stands to effect an improper interpretation of a statute, it also has the potential to create a broad impact on AED litigation in this state and stands to effect general public's perception of the protection offered by the good samaritan statutes. In conjunction with the Appellate Division's decision granting leave to appeal, this court has jurisdiction over this case due to the potential ramifications of the Appellate Division's decision. Furthermore, all questions of law presented herein have been fully presented, preserved and in dispute since the inception of this litigation; therefore, this court also is qualified to hear the arguments presented herein. 11 STATEMENT OF THE FACTS On March 26, 2007, Plaintiff Gregory C. Miglino suddenly collapsed at or near the racquetball courts while engaged in physical activity at Defendant's health club. (R. 23-27). At the time of Plaintiffs collapse, Defendant maintained at least one Automated External Defibrillator ("AED") on its premises. The Defendant's employees responded to Plaintiffs collapse by immediately calling 911 and retrieving the club's AED. (R. 17). Defendant's employee Kenneth LaGrega was the first employee to arrive at the scene, and noted that the Plaintiff was gasping for air, with a faint pulse but good color. (R. 17). As he left the scene to inquire about the status of the emergency dispatch, a physician and medical student (nearby club members) began attending to the Plaintiff and continued to do so until the paramedics arrived. (R. 17). When Mr. LaGrega returned to the scene, Nicole Horstmanshof (another employee) was present and had brought the club's AED to Plaintiffs side. (R 17). At the time of the Plaintiffs collapse, Defendant's employee Kenneth LaGrega had certifications in both the performance of CPR and AED use from a nationally recognized organization or association (American Heart Association). (R 17). Although AED shocks were not administered by the Defendant's employees, they were administered by others who were at the scene, but those efforts were unsuccessful. (R 18). 12 ARGUMENT I. PLAINTIFF ASSUMED mE RISK OF CARDIAC ARREST WHEN HE ENGAGED IN STRENUOUS PHYSICAL ACTIVITY AT THE DEFENDANT'S HEALTH CLUB It is well-established law that a participant of a sporting or recreational activity assumes the risks of those injury-causing events which are known, apparent or reasonably foreseeable consequences of the participation. It is not necessary to the application of assumption of risk that the injured plaintiff have foreseen the exact manner in which his or her injury occurred, so long as he or she is aware of the potential for injury by the mechanism from which the injury results. Morgan v. State, 90 NY2d 471,662 NYS2d 421 (1997). In Morgan, the Court reviewed four separate cases involving injuries that occurred at athletic facilities. The Court of Appeals held that "if the risks of the activity are fully comprehended or perfectly obvious, plaintiff has consented to them and defendant has performed its duty." Id. at 484. The Court went on to hold that " ... because assumption of risk in this form is really a principle of no duty, or no negligence and so denies the existence of any cause of action." Id. At 485. (quoting Prosser & Keeton, Torts §68, at 496-97) [5th ed]. Prior cases have applied the Morgan rationale to a scenario involving cardiac arrests at health clubs. See, Rutnik v. Colonie Center Court Club, Inc., 249 AD2d 13 873, 672 NYS2d 451 (3d Dept. 1998) (Plaintiff who suffered cardiac arrest while playing racquetball assumed the inherent risk by engaging in the sport). Chappill v. Bally Total Fitness Corp., (2011 NY Slip Op 30146(u) (2011). (Plaintiff, as an avid member of the health club, who exercised three to four times per week, assumed the health-related risks of the strenuous exercises he performed.) In this case, Plaintiff was a patron of the Defendant's Health club. In performing strenuous physical activity, he knew or could reasonably have foreseen the risk of suffering a cardiac arrest. As such, the Defendant is exempt from liability. 14 II. DEFENDANT IS IMMUNE FROM LIABILITY UNDER NEW YORK'S GOOD SAMARITAN STATUTE Apart from activities at a medical or dental facility, the New York State "Good Samaritan" statute (Public Health Law §3000-a) protects any individual who voluntarily renders first aid or emergency treatment which results in injury or death to the person who is aided. Specifically, the statute provides, in part: " .. . any person who voluntarily and without expectation of monetary compensation renders first aid or emergency treatment at the scene of an accident or other emergency outside a hospital, doctor's office or any other place having proper and necessary medical equipment, to a person who is unconscious, ill, or injured, shall not be liable for damages for injuries alleged to have been sustained by such person or for damages for the death of such person alleged to have occurred by reason of an act or omission in the rendering of such emergency treatment unless it is established that such injuries were or such death was caused by gross negligence on the part of such person. Nothing in this section shall be deemed or construed to relieve a licensed physician, dentist, nurse, physical therapist or registered physician's assistant from liability for damages for injuries or death caused by an act or omission on the part of such person while rendering professional services in the normal and ordinary course of his or her practice." [emphasis added]. The statute specifies who is not immune from liability when rendering emergency medical treatment - licensed physicians, dentists, nurses, physical therapists or registered physician's assistants. Clearly, the Defendant, a health 15 club, does not fall under any of these exceptions. Therefore, Defendant enjoys the same protections as any other person who voluntarily renders first aid. Like New York, many states have enacted "Good Samaritan" statutes. The purpose of these laws is to encourage individuals to volunteer their assistance by providing them immunity from liability. Based upon the allegations contained in Plaintiffs Complaint, together with the affidavit of Defendant's employee Kenneth LaGrega, it is clear that Defendant provided first aid and emergency treatment to the Plaintiff. Defendant immediately called 911, checked Plaintiffs pulse and color, brought the AED and saw to it that the Plaintiff was monitored by a medical doctor and a medical student. (R. 17, 24). These activities are precisely the types of things that the Good Samaritan statute was designed to encourage and, in the absence of gross negligence, exempt the Defendant from liability. Under the statute, in order to hold liable non-medical personnel, the Plaintiff must demonstrate that the person rendering aid was grossly negligent. See, Public Health Law §3000-a. In this case, the Plaintiff has neither pleaded gross negligence, nor is there any evidence to support a fmding of gross negligence on the part of the Defendant who responded to Plaintiffs collapse. (R. 23-27). Thus, contrary to the Second Department's finding, on its face, Plaintiffs complaint fails 16 to state a cognizable cause of action against Defendant upon which relief may be granted. 17 III. DEFENDANT HAD NO LEGAL DUTY TO USE AN AED AND, mEREFORE, PLAINTIFF'S COMPLAINT FAILS TO STATE A VIABLE CAUSE OF ACTION It has long been the common law in New York that health clubs owe only a minimal duty of care to patrons who suffer cardiac arrest while engaged in athletic activity. Rutnik v. Colonie Center Court Club, Inc., 249 AD2d 873, 672 NYS2d 451 (3d Dept. 1998); (The Rutnik court held that calling 911 and having CPR trained personnel on premises met the standard of care for treating cardiac arrest victims in a health club, and that actual use of an AED was not deemed necessary to meet the standard.); Putrino v. Buffalo Athletic Club, 193 AD2d 1127, 598 NYS2d 648 (4th Dept 1993) (The Putrino court held that Defendant's response to the cardiac arrest suffered by plaintiff while participating in an aerobics class by calling 911 immediately and deferring to a superior medical training and experience of a Nurse who was present was proper and reasonable); Chapp ill v. Bally Total Fitness Corp., 2011 NY Slip Op 30146(u) (2011) (The Chappill court held that Defendant health club could not be liable for failure to use an AED since health clubs have no common law duty to use an AED.) In July of2005, General Business Law §627-a became law, requiring health clubs with 500 or more members to have an AED and someone trained to use it. The statute provides, in part: 18 1. Every health club ... whose membership is five hundred persons or more shall have on the premises at least one automated external defibrillator and shall have in attendance, at all times during business hours at least one individual ... acting as an authorized volunteer who holds a valid certification of completion of a course in the study of the operation of AEDs .... 3. Pursuant to sections 3000-a and 3000-b of the Public Health Law, any public access defibrillation provider, or any employee... who ... voluntarily and without expectation of monetary compensation renders emergency medical or first aid treatment using an AED ... shall be liable only pursuant to section 3000-a of the Public Health Law. [emphasis added]. It is undisputed that Defendant had the required AED and a certified employee on duty at the time of the Plaintiffs collapse. As such, Defendant complied in full with the express terms of this statute. Because there was no violation of the statute and there exists at common law no legal duty to use an AED, the Plaintifr s complaint must be dismissed. The Second Department erroneously accepted Plaintifr s argument that, because the statute requires an AED and a trained individual on premises, there is an implicit duty for Defendant to use the AED. In doing so, the Appellate Division took the existing statute and, in essence, added words (e.g., "the AED must be 19 used") that conflict with those already present (volunteer/voluntarily) and which most certainly derogate the common law. 8 It is well-settled in New York that a statute which is in derogation of common law should be strictly construed. Vucetovic v. Epsom Downs, Inc., 10 NY3d 517, 521 (2008). In fact, the Supreme Court ofthe United States, has held that a statute "in derogation of the common law is to be taken strictly." Brown v. Barry, 3 US 365, 367 (1797). The New York Legislature has provided that "[i]n the construction of a I statute, meaning and effect should be given to all its language, if possible, and words are not to be rejected as superfluous when it is practicable to give to each a distinct and separate meaning." McKinney's Cons Laws ofNY, Book 1, Statutes§ 231. [Emphasis added]. "Every word ... must be presumed to have meaning and to have been inserted in a statute for a purpose." Id. "The legislative intent is to be ascertained from the words and language used, and the statutory language is generally construed according to its natural and most obvious sense, without resorting to an artificial or forced construction." McKinney's Cons Laws of NY, Book 1, Statutes§ 94. "[N]ew language cannot be imported into a statute to give it meaning not otherwise found therein." I d. [Emphasis added]. "The court is 8 Even assuming that General Business Law§ 627-a requires AED use, it is preempted by Federal law (42 U.S.C. § 238q) which protects those that actually use or attempt to use an AED. In bringing the AED to Plaintiff's side, as he was be assisted by a medical doctor, Bally attempted to use the device. 20 obligated to construe statutory language literally where it expresses the evident intent of the Legislature, and the court cannot disregard the plain words of a statute even in favor of what may be termed an equitable construction, in order to extend it to some supposed policy not included in the act." Id. In holding that there is an implicit duty to use an AED in General Business Law §627-a, the Second Department not only failed to honor its obligation to strictly construe that statute but did so in direct violation of McKinney's Cons Laws ofNY, Book 1, Statutes§§ 231 and 94. Construing General Business Law §627-a to mandate AED use renders meaningless the words ''volunteer" and "voluntarily" contained in the statute. "A court cannot amend a statute by inserting words that are not there, nor will a court read into a statute a provision which the Legislature did not see fit to enact." Janssen v. Incorporated Village of Rockville Centre, 59 AD 3d 15, 29, 869 NYS2d, 572, 582 (2d Dept 2008). Merriam-Webster's Dictionary defines the word "voluntary" as "acting or done of one's own free will without valuable consideration or legal obligation." [emphasis added]. Performing a legal duty is the exact opposite of what is done by a "volunteer" or someone who acts "voluntarily." The statute was not written to require AED use. It was written to require an AED and a person trained to use that device so that he or she would be encouraged to volunteer their assistance in an emergency. In this regard, General Business Law §627-a is wholly consistent 21 with New York's Good Samaritan statute, Public Health Law §3000-a, which also uses the word "voluntarily." The Second Department's expansive construction of General Business Law §627-a is fundamentally unfair to the Defendant and other clubs with 500 or more members. These companies are entitled to know what is and is not legally required of them in operating their businesses. They should be able to read a statute and rely upon the plain language of what it says is required. Only in this way can they properly follow the law and mitigate their litigation risks by predicting their exposure. Health clubs should not be required to guess what additional obligations a court might fmd are implied in the statute. If reasonably prudent lawyers can disagree about whether any such additional obligations exist, what chance does a businessman have of successfully making that determination? This case is remarkably similar to Digiulio v. Gran, Inc., et al., 74 AD3d 450; 903 NYS2d 359 (1st Dept 2010), affd 17 NY3d 765, 952 NE2d 1064 (2011). In Digiulio, the plaintiff was running on a treadmill at the New York Health and Racquet Club when he collapsed and fell to the floor. Another member of the club notified the assistant manager who immediately called 911 and came to assist the plaintiff. Another employee arrived and began performing CPR. This was done for several minutes before the paramedics arrived and used their defibrillator on the plaintiff. Although the Club employee was trained in the use of the Club's 22 AED, he failed to retrieve it because he mistakenly believed that it was locked away. The First Department upheld the lower court's decision and dismissed the plaintiffs complaint, holding that it did not construe General Business Law §627- a(l) as imposing liability on a health club which, in compliance with the statute, maintains an accessible defibrillator on the premises, but whose employee exercises poor judgment in attempting to access or use it. Indeed, there is nothing in the statute which suggests that the principles applicable under common law negligence should be extended so as to make a health club liable for an employee's negligence in using, or attempting to use an available defibrillator. See, Digiulio, supra. This Honorable Court affirmed the First Department's decision, and went on to fmd that, even assuming the statute created a duty to use the AED, the defendant health club employee's failure to access it was not grossly negligent, and there was no breach of a common law duty to render aid to the plaintiff. Here, the Plaintiff collapsed while engaged in physical activity at the Defendant's health club at or near the racquetball courts. The Defendant's employees responded by immediately calling 911. Unlike Digiulio, in this case the Defendant's employee actually retrieved the AED and CPR was administered by a doctor who was a club member, not a Bally employee. Nevertheless, both the defendant health club in the Digiulio case and the Defendant in this case satisfied General Business Law§ 627-a by having an AED on the premises along with an 23 employee who was certified to use it. Like Digiulio, the fact that the AED was not used by the Defendant's employee did not violate General Business Law§ 627-a or otherwise subject the Defendant to liability. As succinctly stated by the First Department in the DiGiulio decision, "to interpret Section 627-a as implicitly creating a new duty would conflict with the rule that legislative enactments in derogation of common law, and especially those creating liability where none previously existed, must be strictly construed." DiGiulio, 74 AD3d at 453. 24 Conclusion It is respectfully submitted that, for all of the reasons set forth above, the decision of the Appellate Division, Second Department dated December 27, 2011, and entered December 30, 2011, should be reversed to the extent that it denied Defendant's motion to dismiss Plaintiffs Complaint filed against Defendant Bally Total Fitness of Greater New York, Inc.9 Defendant's request to dismiss Plaintiffs entire Complaint should be granted. Dated: New York, New York May 24,2012 Respectfully submitted, MORRISON MAHONEY LLP Attorneys for Defendants/Appellants Bally Total Fitness of Greater New York, Inc. and Bally Total~~.· ~C-~ By: ~-B~AN-~-p.:·-HH~E--,:;;:-~. -. =-~--.-. - By: /T~( DEMI SOPHOCLEOUS 17 State Street- Suite 1110 New York NY 10004 (212) 825-1212 9 The Second Department's modification dismissing all causes of action asserted against Defendant Bally Total Fitness Corporation should remain in effect. 25