1. This is a case where PLAINTIFF , an experienced skier and athlete, suffered bilateral lower tibial fractures when her Ski Bindings failed to release as they should have when she fell on DATE at SKI RESORT Vermont. PLAINTIFF was using these Ski Binding for the first time since receiving her skis, boots and Ski Bindings back from Defendant DEFENDANT SKI SHOP (“DEFENDANT SKI SHOP”) after entrusting them to DEFENDANT SKI SHOP with instructions that DEFENDANT SKI SHOP test and adjust her Ski Bindings.
2. PLAINTIFF has retained two experts in this case, a Ski Industry expert and a Biomechanical Engineer.
3. PLAINTIFF ’s Ski Industry expert supervised certified testing of PLAINTIFF ’s Ski Bindings and has concluded that PLAINTIFF ’s Ski Bindings did not release when she fell because they were dangerously overtight and malfunctioning. He has concluded that PLAINTIFF ’s Ski Bindings were dangerously overtight and malfunctioning to the point where they could not operate as intended and would not release before the forces being applied to her legs reached the point that PLAINTIFF ’s Biomechanical Engineer avers fractured them.
4. PLAINTIFF’S SKI INDUSTRY EXPERT has concluded that the dangerously overtight and malfunctioning condition of PLAINTIFF ’s Ski Bindings was proximately caused by the negligent failure of DEFENDANT SKI SHOP to properly test and adjust PLAINTIFF ’s Ski Bindings. Their failure included their grossly negligent failure to “Torque” or “Machine test” PLAINTIFF ’s Ski Bindings. “Torque” or “Machine testing” is an Industry and Manufacturer mandated process and the indispensable safety step in the Ski Binding testing process. (Affidavit of PLAINTIFF’S Ski Shop Industry Expert Exhibit “4”).
5. PLAINTIFF ’s biomechanical engineer has concluded that the proximate cause of PLAINTIFF ’s bilateral leg fractures was the failure of her Ski Bindings to release as intended before the forces being applied to her legs reached the point where they were fractured. (Affidavit PLAINTIFF’S BIOMECHANICAL ENGINEER , Exhibit “11”).
6. Appellate Division authority from this Department arising from a case heard in this County specifically indicates that these facts present issues sufficient to go to a jury. (Hippner vs. Salomon North America Inc. 291 A.D. 2d 433 (App. Div. 2nd Dept. 2002).
7. As stated DEFENDANT SKI SHOP’s negligence, in part, consisted of irrefutably failing to “Torque” or “Machine test” the Ski Bindings entrusted to them by PLAINTIFF for adjustment and testing before returning them to her in a dangerously overtight and malfunctioning condition. “Torque” or “Machine Testing” is the most important safety step in the two-step Ski Binding testing and adjustment process. DEFENDANT SKI SHOP’s abject failure to “Torque” or “Machine Test” PLAINTIFF ’s Ski Bindings is an indefensible violation of governing ASTM, Industry and Manufacturer mandates. Controlling Appellate Division authority characterizes this kind of misfeasance as grossly negligent. This misfeasance was not admitted by DEFENDANT SKI SHOP until DEFENDANT SKI SHOP filed its own Affidavits in support of its Summary Judgment Motion, making Plaintiff’s application to amend her pleadings to assert a claim of gross negligence timely.
8. While it claims the contrary, DEFENDANT SKI SHOP does not in fact have a Release applicable to PLAINTIFF ’s case. DEFENDANT SKI SHOP cannot produce any of the paperwork they should have created in association with adjusting and testing PLAINTIFF ’s Ski Bindings. The only paper work DEFENDANT SKI SHOP can produce in their motion for Summary Judgment is a “Equipment Service and Liability Release Agreement” pertaining to a waxing and sharpening of PLAINTIFF ’s skis which occurred 23 months before her accident. This fact is admitted by Defendant’s principal Werner Breuer in his Deposition testimony along with his acknowledgment that the paperwork DEFENDANT SKI SHOP produced had nothing whatso ever to do with the PLAINTIFF ’s Ski Bindings.
DEFENDANT SKI SHOP’S DEFENSES
9. DEFENDANT SKI SHOP premises their motion for Summary Judgment on several specious grounds.
ASSUMPTION OF RISK
10. The first is that ski-injury cases are barred on assumption of risk grounds. This is a completely specious argument which is directly contradicted by settled Appellate Division 2ndDepartment authority. Indeed PLAINTIFF ’s case is on all fours with Hippner vs. Salomon North America Inc. 291 A.D. 2d 433 (App. Div. 2ndDept. 2002) which affirmed a trial court ruling from the Hon. J. McCarty of Nassau County. As the Court wrote;
The plaintiff ….. fell and sustained injuries to his left leg skiing while using new equipment purchased from or manufactured by the defendants. The Supreme Court correctly denied the defendants’ motion for summary judgment. The defendants failed to make a prima facie showing of entitlement to judgment as a matter of law (see, Zuckerman v. City of New York, 49 N.Y.2d 557, 427 N.Y.S.2d 595, 404 N.E.2d 718), since issues of fact exist concerning the validity of the release agreement signed by the plaintiff, the effectiveness of the ski boot bindings, their ability to release during a fall, and the plaintiff’s awareness of the consequences of the bindings’ new release setting.
11. The second ground claimed is that PLAINTIFF signed an “Equipment Service and Liability Release Agreement” which included release language which bars her from bringing this action. But DEFENDANT SKI SHOP baldly misrepresents that the document appended to their motion as Exhibit “6” is an applicable Release. It is NOT. The “Release” affixed as Exhibit “6” to Defendant’s motion is for work undertaken 23 months before PLAINTIFF ’s accident and for work which has nothing to do with her Ski Bindings at all. The document instead pertains solely to a simple waxing and sharpening of PLAINTIFF skis. DEFENDANT SKI SHOP cannot produce any paperwork for the work that PLAINTIFF ’s asked them to undertake prior to the 2016- 2017 ski season on her Ski Bindings. Similarly they cannot produce any paperwork for the original calibration of the Ski Bindings at all, merely producing as Exhibit “5” to their motion. a receipt showing the original sale skis, bindings and boots to PLAINTIFF ’s husband. Again all of the foregoing facts are admitted to by DEFENDANT SKI SHOP’s owner in his Examination Before Trial.
12. The third purported ground relied on by DEFENDANT SKI SHOP is the claim that there was nothing wrong with PLAINTIFF ’s Ski Bindings at all.
13. In the first instance this is directly contradicted by PLAINTIFF ’s Ski Industry expert who supervised and directed testing that found the bindings to be dangerously overtight, failing to release not only at the point where they should have, 229 “Newtons” ( a kind of “foot-pound” measurement), but also failing to release before the “Torque” or force being applied to PLAINTIFF ’s legs reached the point sufficient to fracture them.
14. This Expert also found PLAINTIFF ’s Ski Bindings to be malfunctioning, meaning that even when adjustments were made to the Ski Bindings which should have brought their release-point down to a safe level, they still did not release safely.
15. In addition the injuries themselves speak to the failure of PLAINTIFF ’s Ski Bindings. Scientific Literature recognizes that in up to 90 percent of the cases of ski injuries involving lower leg fractures, the cause of the injury was overly tight or malfunctioning bindings.
16. DEFENDANT SKI SHOP purports to present the affidavit of a mechanical engineer. But this expert did not test PLAINTIFF ’s Ski Bindings consistent with industry standards, and more incredibly, declines to even report the release values of the Ski Bindings tests he did conduct to the Court. Instead he simply and duplicitously claims that Ski Binding malfunctions as high 30% are acceptable.
CLAIM THAT DEFENDANT SKI SHOP’S CONDUCT WAS PROPER
17. DEFENDANT SKI SHOP owner and its expert cross the line of misconduct in this writer’s opinion in attempting to mislead the Court into believing that any work that DEFENDANT SKI SHOP did on PLAINTIFF ’s bindings was proper.
18. There can be no gainsaying that fact that adjusting and testing Ski Bindings is a two step process. The first step is conducted manually using a screw driver to turn a “set screw” in the Ski Binding toe and heel pieces. In this way a small “Visual Indicator” seen through a plastic window in the Ski Binding is “dialed in” to point at one of a dozen numbers seen through or etched onto the window. These numbers, running between “1” to “12”, are referred to as “DIN” numbers.
19. Chosen from a standard chart, the “DIN” number that is “dialed in” depends on a skiers age, height, weight, boot length and skiing ability. Lower “DIN” numbers are set for smaller less experienced skiers whose bones are weaker and who need their bindings to release more easily. Higher “DIN” numbers are set for bigger and better skiers.
20. But this “DIN” number is simply an estimateof how tightly the spring built into the Ski Binding piece has been compressed. A “DIN” number is just a prediction of how much force (measured in “Newtons”) it will take to make the Ski Binding release and free the skier’s boot from the ski. Whatever a “DIN” number may indicate, it is not a guarantee that the Ski Binding will, in fact, function as predicted or intended.
21. To ensure that the Ski Binding will now safely release at the point that it is supposed to, it is MANDATORY that the Ski Binding be “Torque” or “Machine tested” either with a manual device, such as a “Vermont Boot”, or by an industry standard Torque testing machine, such as a “Wintersteiger”. This is something DEFENDANT SKI SHOP irrefutably did not do.
22. PLAINTIFF’S SKI BINDING EXPERT appears to intentionally obscure this fact by averring that nothing DEFENDANT SKI SHOP “did” made PLAINTIFF ’s bindings more dangerous. In fact, however, he knows full well that the gross negligence of DEFENDANT SKI SHOP consisted in what they did not do. He knows full well that DEFENDANT SKI SHOP did not “Torque” or “Machine test” the Ski Bindings that PLAINTIFF entrusted to them to for that very purpose. And he knows full that such testing is something DEFENDANT SKI SHOP is required to do. Sher knows that “Torque” or “Machine testing” is mandatory and indispensable to the testing and adjustment process where complaints have been made regarding a Ski Bindings functioning, and the most important safety step in the process. He knows that DEFENDANT SKI SHOP received a complaint from PLAINTIFF that her Ski Bindings were malfunctioning, that DEFENDANT SKI SHOP failed to test the Ski Bindings and that DEFENDANT SKI SHOP returned the Ski Bindings to PLAINTIFF to continue using them, implicitly assuring her it was safe for her to do so. As discussed within, according to the Appellate Division authority, this is not simple negligence, it is gross negligence.
23. DEFENDANT SKI SHOP’s owner, for his part, echoes the charade, completely omitting in his affidavit on his ski shop practices any mention of mandatory and indispensable “Torque” or “Machine testing” of Ski Bindings. He chooses to suggest to the Court, when he must know it is untrue, that simply dialing in a correct “DIN” number is sufficient.
NO PROXIMATE CAUSE
24. Finally, DEFENDANT SKI SHOP suggest that even if PLAINTIFF ’s bindings were overtly tight and malfunctioning this does not mean that they were the proximate cause of her injuries. But the only “evidence” that DEFENDANT SKI SHOP offers is an “opinion” of PLAINTIFF’S SKI BINDING EXPERT made in passing in a single line. This Expert, however, is not a medical doctor or a biomechanical engineer. He is simply a mechanical engineer. He is unqualified to give a medical opinion on proximate cause.
25. In direct apposition is the admissible opinion offered in Affidavit form by PLAINTIFF’S BIOMECHANICAL ENGINEER . His opinion, which in this case is uncontradicted, is that PLAINTIFF ’s bilateral tibia fractures were proximately caused by the failure of her Ski Bindings to release before the force being applied to them reached 280 Newtons.
26. When PLAINTIFF’S BIOMECHANICAL ENGINEER opinion is coupled with PLAINTIFF’S SKI INDUSTRY EXPERT opinion that PLAINTIFF ’s Ski Bindings should have released at 229 Newtons, and that the reason they did not was as a result of DEFENDANT SKI SHOP negligence and gross negligence, PLAINTIFF has established not only questions of fact, but her own entitlement to Summary Judgment on a searching of the record.
PLAINTIFF’S CROSS MOTION TO AMEND ITS PLEADINGS TO ADD A CLAIM OF FOR GROSS NEGLIGENCE
108. When this action was commenced it appeared that DEFENDANT was responsible on a theory of ordinary negligence for failing to properly adjust PLAINTIFF ’s bindings.
109. But when the Affidavits of DEFENDANT ’s owner OWNER and expert were filed in support of Defendant’s Summary Judgment Motion it was indisputable clear that no “Torque” or “Machine Testing” had been done on PLAINTIFF ’s Ski Bindings even though she specifically brought them to DEFENDANT with a complaint that the Ski Bindings were malfunctioning.
110. This office has learned that nearly identical Affidavits had been filed by OWNER and DEFENDANTS EXPERT in another case pending against DEFENDANT in this County. That case involved a juvenile who also suffered bilateral Tibial fractures in a case where no “Torque” or “Machine testing” was done. (Ironically the Plaintiff in that case is also named “Sullivan”, although with no relation to PLAINTIFF .) (OWNER AFFIDAVIT, SECOND PLAINTIFF vs. DEFENDANT , Index No.: )
111. PLAINTIFF ’s expert specifically addresses the manner in which the conduct of DEFENDANT departed grossly from the standard of care required of a Ski Shop in a situation like that of PLAINTIFF .
112. The allegations contained in this case are in sum that DEFENDANT received a complaint from PLAINTIFF that her Ski Bindings were malfunctioning, failed to meaningfully inspect or test them, yet returned the Ski Bindings to PLAINTIFF to continue using, implicitly assuring her that the Ski Bindings were safe to use.
113. In at least one reported case this kind of conduct has been specifically held to be grossly negligent and reckless, a finding affirmed by the Appellate Division. This case also approved the use of motion practice related to the question of gross negligence after an opportunity to have discovery on it was completed. Thus the trial court wrote in Dillon v. Motorcycle Safety School, Inc. 22 Misc.3d 1127(A), N.Y.Sup., Sep. 22, 2008.
Insofar as these allegations, and the request to make this motion after having had an opportunity In sum, the evidence raises questions whether defendants’ employee (a) knew the motorcycle was defective or (b) received complaints indicating its defective condition and failed either to inspect it or to instruct plaintiff how to handle it, yet instructed plaintiff to continue using it, implicitly assuring him it was safe for him to use. In any such instance defendants then recklessly placed plaintiff at risk of harm from a dangerous instrumentality without instructing him in the skills to use it safely. (citations omitted) Just as Justice Walker’s prior decision concluded, this conduct evinced a reckless or intentional disregard for plaintiff’s safety.
114. As noted the Appellate Division specifically affirmed that this conduct presented a question of gross negligence and repeated the well settled rule that no release will absolve a party from its own Gross Negligence. Thus the Court wrote in Dillon v. Motorcycle Safety School, Inc. 59 A.D.3d 280 872 N.Y.S.2d 669;
Although New York law generally enforces contractual provisions absolving a party from its own negligence, public policy prohibits contractual avoidance of liability for damages occasioned by grossly negligent conduct (Sommer v. Federal Signal Corp., 79 N.Y.2d 540, 554, 583 N.Y.S.2d 957, 593 N.E.2d 1365 ; Federal Ins. Co. v. Honeywell, Inc., 243 A.D.2d 605, 663 N.Y.S.2d 247  ). The court correctly determined that there were issues of fact as to whether defendants’ activity rose to the level of gross negligence (see Food Pageant v. Consolidated Edison Co., 54 N.Y.2d 167, 172–173, 445 N.Y.S.2d 60, 429 N.E.2d 738  ).
115. Plaintiff’s proposed Amended Complaint is affixed hereto as Exhibit “11”. This amendment would also correct the clerical error which had PLAINTIFF ’s injury occurring in 2017 as opposed to 2016.
116. The law of this State is that “eave to amend a pleading pursuant to CPLR 3025(b) should be freely granted absent prejudice or surprise resulting from the delay (see Edenwald Contr. Co. v. City of New York, 60 N.Y.2d 957, 959, 471 N.Y.S.2d 55, 459 N.E.2d 164; Probst v. Cacoulidis, 295 A.D.2d 331, 331-332, 743 N.Y.S.2d 509).” See Buckholz v. Maple Garden Apartments, LLC, 38 A.D.3d 584, 832 N.Y.S.2d 255, 256 (2d Dep’t 2007). Buckholz involved an application to add a claim of punitive damages, analogous to the application of Plaintiff in this matter. As noted in Buckholz the decision to allow or disallow an amendment is left to the motion court’s sound discretion and should be granted, as here, where there is clear proof of conduct by the Defendant which rises to the level of wanton or grossly negligent conduct.