The plaintiff in Miglino, which will be heard tomorrow, is Gregory Miglino Jr. His 60-year-old father collapsed while playing racquetball at a Bally's Total Fitness in Lake Grove in March 2007.
While the club employee trained to use the AED was on hand and produced the device, a doctor and a medical student who were in the club at the time took over until an emergency crew arrived and the AED was never used.
Miglino was pronounced dead about 45 minutes later upon arrival at a local hospital.
John Decolator of Garden City, who is helping represent Miglino along with the Charnes Law Firm in Manhattan, argues that the Second Department was right in finding Bally's had a duty to use the AED.
The AED statute was "enacted to address precisely the circumstances at issue here, that is, an individual who has suffered a cardiac arrest while engaged in strenuous exercise at a health club," Decolator says in his brief. "Exempting a health club from liability because the individual assumed the risk of that cardiac arrest would eviscerate the statute and render its protections utterly meaningless."
The first time the Court of Appeals considered the reach of liability under the AED statute was in DiGiulio v. Gran, 17 NY3d 765 (2011). In that case, the patron of another health club, Albert DiGiulio, died about two months after being having a heart attack while exercising on a treadmill.
The club's AED was in a nearby glass case, but the assistant manager thought the case was locked. As he went to look for a key, a trainer administered CPR on DiGiulio until EMTs from the local fire department arrived soon afterward. The AED was never used.
A First Department panel granted summary judgment to the club, concluding that it owed DiGiulio no duty to actually employ the AED under the AED statute. The Court of Appeals affirmed, but it did so without deciding the broader question of whether the law creates a duty for clubs to use the defibrillator.
Son of Sam Law Issue
Also tomorrow, the judges will be asked if the Son of Sam statute, Executive Law §632-a, allows the withholding of public pension payments from Steven Raucci, the one-time facilities director for Schenectady schools.
The state Office of Victim Services brought the case, Matter of New York State Office of Victim Services v. Raucci, 6, before the courts on behalf of two of Raucci's victims. They are attempting to receive compensation for his crimes out of his $5,800-a-month pension benefits.
Raucci and his wife, who holds power of attorney over her husband, contend his pension is protected against "execution, garnishment, attachment, or any other process whatsoever" under state Retirement and Social Security Law and the CPLR.
A Third Department panel granted a motion for a preliminary injunction prohibiting the Rauccis from dissipating the pension in anticipation of possible judgments against Raucci by his victims under the Son of Sam Law (NYLJ, June 8).