Smilanichv.Buffalo

Appellate Division of the Supreme Court of New York, Fourth DepartmentDec 30, 1999
700 N.Y.S.2d 638 (N.Y. App. Div. 1999)
700 N.Y.S.2d 638267 A.D.2d 1049

December 30, 1999

Appeal from Order of Supreme Court, Erie County, Glownia, J. — Summary Judgment.

Order unanimously reversed on the law without costs, motion denied and complaint and cross claims against defendant The Olympia Club of Buffalo, Inc. reinstated.

PRESENT: PINE, J. P., LAWTON, WISNER, HURLBUTT AND BALIO, JJ.


Memorandum:

Plaintiff commenced this action to recover damages for the personal injuries and wrongful death of decedent, who died while using the steam room in the facility of defendant The Olympia Club of Buffalo, Inc. (Olympia). The complaint, as amplified by the bill of particulars, alleges that the death was caused by Olympia's failure to maintain and operate the steam room properly and to warn of the dangers presented in its use. Supreme Court erred in granting the motion of Olympia for summary judgment dismissing the complaint and cross claims against it. Olympia failed to sustain its initial burden of demonstrating its entitlement to judgment as a matter of law ( see, Friends of Animals v. Associated Fur Mfrs., 46 N.Y.2d 1065, 1067). Olympia submitted the deposition testimony of its manager, stating that defendant Sauna Buffalo, a Division of Sequoia Industries, Inc., tested the steam room after decedent's death and stated that it needed no repairs and was functioning properly. Those hearsay statements did not establish Olympia's entitlement to judgment as a matter of law ( see, Blackmon v. Fay's Inc., 254 A.D.2d 719), and in any event did not establish that the steam room was functioning properly on the date in question and that Olympia had no duty to warn of the risks of its use ( see, Hirsh v. Bert's Bikes Sports, 227 A.D.2d 956). Nor did the manager's testimony refute the allegation that decedent's death was caused by heat in the steam room ( see, Hirsh v. Bert's Bikes Sports, supra). Even assuming that Olympia met its initial burden, we conclude that plaintiff raised triable issues of fact ( see, Hirsh v. Bert's Bikes Sports, supra, at 957).