
    Adele Ellis, Plaintiff, v. Tower Health Club, Inc., et al., Defendants.
    Civil Court of the City of New York, New York County,
    March 28, 1973.
    
      Adele Ellis, plaintiff in person. Lewis J. Rappoport for . defendants.
   Irving Younger, J.

The question presented by this interesting small claims case is whether a woman who buys a membership in a health club may get her money back when the health club is transformed into a massage parlor.

Plaintiff holds a responsible position with one of the television networks. In January, 1971, when her physician advised her to take up swimming, she went looking for a health club. It was easy to find one. Defendants’ health club was located in the very building where plaintiff lived. It had a swimming pool, a gymnasium, and separate saunas and showers for Inen and for women. Plaintiff joined.

Her membership ran to January, 1972. All went well, and, on January 28, 1972, plaintiff signed a contract .renewing her membership for another year. The fee was $220, which she paid.

Almost immediately, plaintiff became ill. She could not use the club’s facilities for about six weeks. Defendants were sympathetic, and agreed, in substance, that plaintiff’s contract would be deemed to run from March 15,1972, to March 15,1973.

Plaintiff used her new membership in late March or early April. She entered the women’s sauna. A nude man was in it. She retreated to the women’s shower, where she found another nude man washing himself. She retreated again and sought the owner, who was nowhere to be found. Plaintiff never returned.

In October, the club was raided. The police arrested 14 young women and 2 male employees on prostitution charges. But since the complaints were dismissed in Criminal Court, the raid plays no part in my decision. What does is defendants’ advertising leaflet, printed on pink paper, embellished with a photograph of une grande horisontale, and captioned, “ There’s a new sport in town.” The text runs as follows: “ Now you can sneak away at lunch or right after work to New York’s most unique and beautiful private key club. Experience the ultimate in total relaxation. A trained team of lovely masseuses are waiting to rub your weary body back to life in one of our many private massage rooms. Massage is just one of the many services available to you at no extra charge * * * Apply now. A limited number of charter keys are still available. Open 12:00 noon ’till 2:30 a.m. Major credit cards accepted.”

So much for facts. Now for law. The contract reflects a bargain between plaintiff and defendants whereby plaintiff paid $220 and defendants were to make available to plaintiff for a period of one year the facilities of the health club. Implicit in defendants’ promise was the further promise that a health club it would be; not a bordello, not a dance hall, and not, as it became, a massage parlor.' When defendants changed the nature of the enterprise, they breached their implied promise to plaintiff. Since the breach was .substantial, plaintiff in turn had the right to rescind. I find that plaintiff exercised this right with reasonable promptness, and so conclude that 11 substantial justice between the parties according to the rules of substantive law ”, (CCA, § 1804), requires a judgment for $220 in plaintiff’s favor.  