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NY top court opens session with 2 LI cases

A woman is seen leaving a Bally Sports

A woman is seen leaving a Bally Sports Club in New York. (Dec. 3, 2008) Credit: AP

ALBANY -- Focusing on a Suffolk County fatality, New York's highest court Thursday will weigh whether health clubs have an obligation to use defibrillators on a member suffering a heart attack.

In its January session, the Court of Appeals also will hear a case involving a Long Beach firefighter who is battling the city over disability pension payments.

The defibrillator case centers on Gregory Miglino Sr., 60, of Brookhaven, who in 2007 suffered cardiac arrest on a racquetball court at a Lake Grove health club owned by Bally Total Fitness of Greater New York Inc.

According to court documents, club staff dialed 911; meanwhile, a personal trainer on staff who checked on Miglino said he had normal color and a faint pulse. Soon, a doctor and a medical student who were at the club were on the scene, along with another employee who brought an automated external defibrillator. Though the trainer knew how to use the AED, he never employed it.

Miglino was unconscious when the ambulance arrived eight minutes after the 911 call and could not be revived. He was pronounced dead at Stony Brook University Hospital.

Miglino's son, Gregory Jr. of Brookhaven, sued Bally for negligence. No amount of damages was specified, said Miglino's attorney, John Decolator. The company claimed immunity -- saying it was covered by a "Good Samaritan" provision in state law that exempts businesses in such cases unless there is "gross negligence" -- and asked a court to dismiss the case.

But two lower courts have declined to do so. The midlevel Appellate Division ruled for Miglino, saying: "Although the statute does not contain any provision that specifically imposes an affirmative duty upon the facility to make use of its required AEDs, it also does not contain any provision stating that there is no duty to act. Moreover, it is illogical to conclude that no such duty exists."

Bally's lawyer didn't immediately return a call to comment.

In the other Long Island case the Court of Appeals will hear in January, firefighter Brian Ward claims the City of Long Beach has improperly denied him a disability pension. Ward said he injured his knee while on duty at the firehouse in 2003. City officials, according to court documents, countered that Ward's estranged wife told them the injury occurred at their child's soccer game.

A state Supreme Court justice ruled for Ward, saying his then-wife's statements were "wholly unverified" and were made amid divorce proceedings. Without stronger evidence, the city had no "rational basis to deny" Ward disability pension payments, the court said. A midlevel court upheld the verdict and the city appealed to the state's highest court.

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