ALBANY – A law mandating that larger health clubs in New York be equipped with automatic external defibrillators and that a staffer trained in their use be on hand does not require that the machines actually be used on stricken patrons, the state Court of Appeals ruled yesterday.

In another decision, the court said swearing at a police officer without some other threat to cause "public harm" is not sufficient to constitute disorderly conduct.

The court’s 4-1 ruling on the defibrillators (AEDs) concerned the extent of the duty that the state law requiring their presence in health clubs with 500 or more members imposes on the clubs’ proprietors.

Gregory Miglino Jr. contended in Miglino v. Bally Total Fitness of Greater New York, 10, that the operators of a Bally’s in Lake Grove, Suffolk County, were liable because the club’s defibrillator was never used on his father, Gregory Miglino Sr., when he collapsed while playing racquetball in 2007.

While club employees produced the defibrillator and a club employee who received American Heart Association-sanctioned training in using the device was present, the device was not employed. The trained club employee testified that he did not use it because a doctor and a medical student at the club the morning Miglino was stricken responded to a call for help and he deferred to their expertise.

Miglino was transported to a local hospital, but never regained consciousness before dying.

In an analysis of the AED statute, which was established as General Municipal Law §627-a in 2005, the majority said yesterday it disagreed with the plaintiff that the law creates an affirmative duty for clubs to use their defibrillators.

Both the General Municipal Law and so-called Good Samaritan statute, Public Health Law §3000, which absolves emergency health care givers from liability except for gross negligence, use the words "volunteer" and "voluntarily" to describe revival efforts described in the statutes, Susan Phillips Read (See Profile) wrote for the majority.

That language evinces "the Legislature’s intent to protect health clubs and their employees from the risk of liability for ordinary negligence with respect to AEDs," Read said.

According to Read, the ruling resolved the question of the Legislature’s intent about the health clubs’ duty at issue in Miglino, an issue left open by the Court of Appeals two years ago in its ruling in Digiulio v. Gran, 17 NY3d 765.

In Digiulio, the court affirmed a lower court ruling that a health club did not have a duty to use its defibrillator on a dying patron, but it did so in a way that did not address head-on the question of the Legislature’s intent on the duty of all health clubs under the 2005 statute.

The majority noted that Digiulio asked whether the health club defendant was entitled to summary judgment.

Read wrote that Miglino was brought as a motion to dismiss under CPLR 3211(a)(7), which limits the court to a review whether the plaintiff stated a cause of action. Under that standard, the court’s ruling was technically an affirmance of the finding of an Appellate Division, Second Department panel that Miglino has at least pleaded a viable cause of action at common law at this stage of the litigation (NYLJ, Jan. 3 , 2012).

On the substantive question, however, the Second Department held that the defibrillator bill did require health clubs to use the devices, a finding which the Court of Appeals rejected.

Judges Victoria Graffeo (See Profile), Robert Smith (See Profile) and Eugene Pigott Jr. (See Profile) joined in the majority.

In a partial dissent, Chief Judge Jonathan Lippman (See Profile) said his colleagues were reaching an illogical result by finding that a law that requires defibrillators to be available in larger health clubs and staff on hand at all times trained to use it does not carry with it the duty to try to use the life-saving devices.

"It should go without saying that the presence of an AED will be of no benefit whatsoever to a person in cardiac arrest unless, of course, it is actually used," Lippman wrote.

He said the General Business Law §627-a[1] should be read in tandem with the Good Samaritan statute to impose such a duty on the health clubs, with the understanding that people offering voluntary, good faith emergency aid not be held liable for damages except if gross negligence is involved.

Lippman said a law should be interpreted in a way that is "consistent with its spirit and benevolent aim."

"The majority opinion, however, does the opposite," Lippman wrote. "As read by the majority, the Legislature enacted an essentially purposeless statute that requires health clubs to purchase AEDs and train employees to use them, but does not require that the devices be applied in any potentially life saving situation."

But Read, alluding to Lippman’s dissent, wrote that his approach would "engender a whole new field of tort litigation, saddling health clubs with new costs and generating uncertainty."

"The Legislature is unlikely to have imposed such a new duty absent an express statement, especially given the remedy of treble damages provided by General Business Law §628" for violations of the statute, Read wrote.

Scott Charnas of the Charnas Law Firm, which represent the Miglino family along with John Decolator of Garden City, said he was "quite disappointed" with the ruling. "We agree with Judge Lippman, but that doesn’t help us," Charnas said yesterday.

His clients will proceed with their suit on common-law grounds, Charnas said. "We don’t think the facts of what transpired that day are all yet on the table."

Brian Heermance of Morrison Mahoney argued for Bally’s.

Disorderly Conduct Arrest

In another ruling yesterday, the court said a Rochester police officer had insufficient cause to arrest for disorderly conduct a man who swore at him, and it ordered that cocaine later found on the man be suppressed as evidence on a drug charge.

According to the court, when Trevis Baker encountered the officer in his squad car checking the registration of a car owned by the grandfather of Baker’s girlfriend, he told the officer, "That’s harassment" and then called him a vulgar name.

When the officer asked what Baker had said, the man repeated the phrase, according to briefs before the court.

The officer arrested Baker for disorderly conduct and, when police said they found 25 bags of crack cocaine on him when he was searched, Baker was also charged with third-degree criminal possession of a controlled substance.

Graffeo said a long line of court precedents, including People v. Weaver, 16 NY3d 123 (2011) and People v. Tichenor, 89 NY2d 769 (1997), have established that the crime of disorderly conduct hinges on a finding that the defendant’s disruptive conduct poses a risk of "public harm."

In Tichenor, for example, the court said, a lone officer on foot patrol arrested an abusive man outside a crowded bar in part because the officer feared the confrontation would escalate and other patrons would get involved.

No such danger of public disruption accompanied Baker’s 2006 confrontation with the officer, where another officer was nearby and bystanders did not seem interested in interceding, the court held in a unanimous ruling.

"Isolated statements using coarse language to criticize the actions of a police officer, unaccompanied by provocative acts or other aggravating circumstances, will rarely afford a sufficient basis to infer the presence of the ‘public harm’ mens rea necessary to support a disorderly conduct charge," Graffeo wrote.

The judge said that because it found that Baker’s arrest did not meet the criteria for an arrest for disorderly conduct, the court did not need to reach Baker’s other contention, that the arrest based on his use of vulgarities toward the officer violated his First Amendment rights.

Timothy Davis of the Monroe County Public Defender’s Office represented Baker. Assistant Monroe County District Attorney Geoffrey Kaeuper argued for the prosecution.

The cases were People v. Baker, 16, and People v. Baker, 17.

Also yesterday, the court in United States Fidelity & Guaranty v. American Re-Insurance, 1, modified a finding by the First Department that affirmed a $420 million judgment against reinsurers stemming from asbestos exposure claims that originated with the Western Asbestos Company between 1948 and 1959.

The Court of Appeals agreed 5-0 that an issue of fact exists about whether a portion of the judgment is attributable to "bad faith" claims made against United States Fidelity & Guaranty Company and whether those claims were given unreasonable values for settlement purposes.

The court also concluded in a ruling by Judge Robert Smith that courts below correctly rejected the other defenses raised by the reinsurers.

Kathleen Sullivan of Quinn Emanuel Urquhart & Sullivan and Herbert Wachtell of Wachtell, Lipton, Rosen & Katz represented reinsurers.

Mary Kay Vyskocil of Simpson Thatcher & Bartlett argued for United States Fidelity & Guaranty Company.