If a company that runs a chain of gyms in New York City has chosen to blatantly violate paragraph 3 within §623 of the Health Club Licensing Law by including provisions within membership agreements that lead the member to believe that the gym and its staff are indemnified against lawsuits, can a class-action be filed against the gym on that basis and what punitive and/or compensatory damages may be expected? Could this also lead to the gym's license to operate to be revoked?
I have not read the statute but what wouldyyour damages be?
I am a former federal and State prosecutor and have been handling criminal defense and personal injury cases for over 18 years. The above answer, and any follow up comments or emails, is for informational purposes only and not meant as legal advice.
Dear Manhattan Health Club Member"
What provision in your member contract runs afoul of section 3 of section 623:
">>>3. No contract for services may contain any provisions whereby the buyer agrees not to assert against the seller or any assignee or transferee of the health club services contract any claim or defense arising out of the health club services contract.>>>"
The answer provided to you is in the nature of general information. The general proposition being that you should try to avoid a bad outcome if you can.
The provision you quoted in the comments section to one of the other answers does seem to be overly broad and potentially in violation of the Health Club Licensing Law (HCLL). However, an attorney would need to review the entire agreement to determine context of that provision.
The HCLL does provide for a private right of action of violations of the HCLL (See §628 Private right of action, which provides: "Any buyer damaged by a violation of this article may bring an action for recovery of damages. Judgment may be entered in an amount not to exceed three times the actual damages plus reasonable attorney fees."
Thus, the HCLL allows you to sue for damages resulting from violations of the HCLL. However, as one of the other lawyers noted, it is unclear what, if any, damages you have sustained as a result of the alleged violation of the HCLL. If you have not suffered actual economic harm as a result of the alleged violation of the HCLL, then you would not have much luck bringing suit under Section 628.
Lastly, the HCLL provides for statutory penalties for violations of the HCLL. (See §629 Violations, which provides: "Any seller or his assignees who violate any provision of this article, or who shall counsel, aid or abet such violation shall be liable for a civil fine of not more than $2,500 for each violation.").
It is unclear from Section 629 whether such penalties are available to consumers bringing a private lawsuit. Further legal research would be required to make such a determination. However, because this penalty is referred to as a "fine," this remedy may be available only to government entities bringing enforcement actions for violations of the HCLL.
Legal Information is Not Legal Advice My answer provides information about the law based on the limited information provided in the questions asked and is not intended to provide legal advice or opinions, and does not constitute an attorney-client relationship. The answer to the question is for educational and informational purposes only. The law differs in each jurisdiction and may be interpreted or applied differently depending on the jurisdiction or situation. Accordingly, I highly recommend that you consult with an attorney to discuss the details of your problem so you can get legal advice tailored to your particular circumstances. I am licensed to practice law in California, New Jersey and Pennsylvania.
As my colleagues have said, there is little likelihood that you would be able to show any legal harm that is more than de minimis. I also want to point out that you keep mentioning a "class action" approach, but getting a class certification for such a small claim would be near impossible, since everyone would have no legal harm or almost no legal harm.
I would also venture to guess than any hold harmless provision in a health club's agreement was already vetted by a legal team familiar with the HCLL, so I doubt that such an action would win.
Lawsuits are not always the answer. And if this is simply an attempt to get a return of your membership fees for a customer service issue or complaint, there might be better solutions in contacting one of the city's many administrative agencies with oversight over gyms and small businesses.
I would start there. Best of luck.
This does not constitute legal advice or the engagement of my services as an attorney.
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