Wade Clark Mulcahy LLP

In <em><a href="https://www.wcmlaw.com/wp-content/uploads/2023/01/Michael-Pecora-v.-Fitness-International-LLC.pdf">Michael Pecora v. Fitness International LLC,</a> </em>2023 NY Slip Op 00103 (2d Dept. 2023), plaintiff alleged he contracted infections at his local gym as a gym member in July 2014. He received an infection on his stomach, received medical treatment for that infection, and then alleged that after use of the gym sauna, he thereafter developed MRSA (a bacterial infection) one day later. Plaintiff sued the gym alleging that both infections were caused by a dangerous or defective condition on the premises which caused plaintiff’s infections. However, the Court did not buy plaintiff’s argument and the Appellate Division affirmed that ruling.

Of import, Counsel for the gym provided a prima facie argument that the plaintiff would not be able to prove, without resorting to speculation, that the pathogen which caused his infections was present at the defendants' facility,  Defendants submitted an expert report citing that such infections can be transmitted in various ways in different locations, that the facility was cleaned regularly, and there were no prior complaints or reports of MRSA infections. The Appellate court also determined that “since there could have been many possible sources of the infection-producing pathogen, any determination by the trier of fact that a condition at the defendants' facility caused the plaintiff's infections would be based upon sheer conjecture” (<em>Dennis v Lakhani</em>, 102 A.D.3d 651, 652; cf. <em>Ash v City of New York</em>, 109 A.D.3d 854, 855; <em>Garvin v Rosenberg</em>, 204 A.D.2d 388). Plaintiff failed to raise a triable issue of fact against those arguments.

As result of Covid and other transmitted infections, property managers have seen the increase in suits of this type and while it can be difficult to defend because plaintiffs allege that the infection came from the property owner,  medical experts are necessary to explain these types of MRSA infections are common and can occur anywhere. This case shows that the Appellate Court will sustain summary judgment ruling if a premises owner can prove that it maintained and cleaned the facility regularly, and there were no previous reports from other public patrons.

Thanks to Raymond Gonzalez for his assistance in this post.  Should you have any questions, please contact <a href="tbracken@wcmlaw.com">Tom Bracken</a>.