ALBANY - The state Court of Appeals will entertain a second appeal on the same legal issue in little more than 18 months when the judges convene in Albany beginning today to work through its 26-case calendar for January.
Miglino v. Bally Total Fitness of Greater New York, 10, represents the second stab the court has taken on the question of the liability of health clubs in New York that are obligated under the law to have automated external defibrillators (AEDs) on their premises. The question the court will face is whether the clubs can be sued by heart attack victims or their survivors if the mandatory AEDs are not actually used to aid patrons who go into cardiac arrest.
The court will convene with five judges, the bare minimum it needs to hear cases, due to the November death of Theodore Jones Jr. and the Dec. 31 retirement of Carmen Beauchamp Ciparick. It needs a minimum of four to reach a decision.
Governor Andrew Cuomo is weighing a list of nominees for Ciparick's seat, but it is unlikely he will submit the candidate's name to the state Senate and the nominee will be confirmed by the Jan. 10 conclusion of the court's January oral arguments.
In other cases this month, the court will hear arguments on whether the payment of $10,000 to a subpoenaed fact witness was both unethical and contrary to the CPLR and whether the Son of Sam Law's prohibition against offenders profiting from their crimes extends to pension benefits due a school district supervisor who is imprisoned for planting bombs to intimidate his adversaries.
The AED controversy arises over the interpretation of the state's 2005 law requiring health clubs with at least 500 members to be equipped with the electrical devices designed to shock the hearts of cardiac arrest victims back to activity, and staffed with at least one employee who knows how to use the device.
In Miglino, to be argued tomorrow, the Court of Appeals will review an Appellate Division, Second Department, ruling that concluded health clubs have an affirmative duty to use AEDs in an emergency, although the statute created in 2005 is silent about such a duty. The panel concluded, in essence, that there would be no purpose behind the AED statute if there were not an accompanying duty to actually use the devices to try to save lives (NYLJ, January 3, 2011).
Interpreting the AED law, codified as General Business Law §627-a, in the way the Second Department did would strip people who come to the aid of others stricken by a health emergency of the general immunity they enjoy from liability for damages or death under the state's "Good Samaritan statute," Public Health Law §3000-a, Bally's will contend before the Court of Appeals.
"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 statute," Brian Heermance of Morrison Mahoney says on Bally's behalf in his brief before the Court of Appeals.
The Second Department allowed the Miglinos action to go forward, affirming a June 2010 ruling by Suffolk County Supreme Court Justice Jeffrey Arlen Spinner (See Profile).