Gregory Miglino Sr. suffered a fatal heart attack playing racquetball at Bally Total Fitness of Greater New York, Inc. (Bally’s) (defendant). In compliance with state law, Bally’s had an automated external defibrillator (AED) on hand and a personal trainer certified to use it and perform CPR. A gym member informed the front desk that Miglino had collapsed and 911 was called. The trainer ran to Miglino, found him on his back with eyes open and breathing heavily, checked for and found a faint pulse, then left the scene. When the trainer returned, a doctor and medical student were attending Miglino, and another Bally’s employee had brought the AED to Miglino’s side. But nobody actually used the AED to defibrillate Miglino, and he died before reaching the hospital. Miglino’s son sued Bally’s for negligence based on failure to use the AED. Bally’s moved to dismiss the complaint for failure to state a cognizable claim, but the trial court refused, prompting Bally’s to appeal.