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August 2020

New York Senior Counsel Gregory Brescia Obtains Full Dismissal on Summary Judgment for Retail Fitness Chain

Gordon Rees Scully Mansukhani New York Senior Counsel, Gregory Brescia, successfully secured an order granting summary judgment and complete dismissal of a complaint pursuant to Rule 56 of the Federal Rules of Civil Procedure on behalf of the firm’s client, a prominent retail fitness chain.

The plaintiff, Anthony DeLuigi, allegedly sustained serious injuries while descending the stairs at a retail fitness center in New York, NY, when he slipped and fell on leaves that had accumulate on the stairs. The plaintiff’s theory of liability was that the retail fitness chain was negligent in permitting leaves to accumulate on the stairs, causing the plaintiff to slip and injure himself. The plaintiff’s alleged injuries included a right ankle fracture requiring open reduction internal fixation surgery. The plaintiff sought $500,000 for the injuries sustained in connection with this incident.

After the close of discovery, Brescia moved for summary judgment on the issue of liability, arguing that the plaintiff was unable to offer any testimony or evidence demonstrating that the firm’s client caused and/or created the alleged dangerous condition – the accumulation of leaves– which caused the plaintiff’s accident. In its motion papers, Brescia was able to further articulate the retail fitness chain had neither actual nor constructive notice of such condition prior to the plaintiff’s accident. Moreover, Brescia argued that the complained of condition was transient in nature.

In response, plaintiff’s counsel attempted to link leaves accumulating from members shoes as they performed calf raises, which was first observed six months after the date of the accident, as a means for establishing the retail fitness chain was aware of a recurring condition. In its reply, Brescia argued such contention was pure speculation and further submitted a declaration from an employee stating that he traveled down the exact staircase at most fifteen minutes prior to the accident and did not see any leaves on the stairs.

Ultimately, Judge Robert Kalish agreed with Gordon & Rees' contentions on the issue of liability, while also finding that the plaintiff failed to rebut the defendant's prima facie entitlement to summary judgment as a matter of law. As such, the plaintiff's case was dismissed.

Gregory N. Brescia