A New York state appeals court has modified the order of a lower court finding that a student-athlete did, in fact, state a cause of action when he sued Iona College, claiming it “had actual or constructive notice of the presence of methicillin resistant staphylococcus aureus bacteria in its athletic facilities and negligently failed to respond thereto.”
On May 19, 2008. the trial court had dismissed the claim of Nicholas Zaffarese, pursuant to CPLR 3211(a)(7) for failure to state a cause of action. The plaintiff, who had alleged that he contracted a MRSA bacterial infection at Iona’s athletic facilities, appealed.
While the appeals court agreed with part of the trial court’s decision, it concluded that the trial court may have fallen short in terms of “viewing the complaint in the light most favorable to the plaintiff,” given that “the factual allegations contained therein are true for the purposes of this motion pursuant to CPLR 3211(a)(7) to dismiss the complaint for failure to state a cause of action ( see Leon v. Martinez, 84 N.Y.2d 83, 87-88, 614 N.Y.S.2d 972, 638 N.E.2d 511; Kaplon-Belo Assoc., Inc. v. D’Angelo, 57 A.D.3d 948, 869 N.Y.S.2d 789; *349 Heffez v. L & G General Constr., Inc., 56 A.D.3d 526, 867 N.Y.S.2d 198). We conclude that the complaint states a cause of action to this limited extent only, and modify the order accordingly.”
Zaffarese sued Iona in 2007, accusing team trainers of initially brushing off his burgeoning MRSA infection in September 2005. He also claimed the team’s locker room an “unsanitary” environment in which players shared towels and equipment.
The full opinion can be viewed here: http://www.courts.state.ny.us/courts/ad2/calendar/webcal/decisions/2009/D23365.pdf
Zaffarese v. Iona College; Supreme Court, Appellate Division, Second Department, New York; 879 N.Y.S.2d 348, N.Y.A.D. 2 Dept. 2009; 6/2/09
Attorneys of Record: (for appellant) Bisceglie & DeMarco, LLC, New York, N.Y. (Mark I. Silberblatt of counsel). (for respondent) Tarter Krinsky & Drogin LLP, New York, N.Y. (Anthony D. Dougherty of counsel).
