Opinion
INDEX NO. 6999/11 NO. 1 & 2
02-08-2012
CARLOS DeSOUSA, Plaintiff(s), v. MARCH OF DIMES FOUNDATION and DONALD R. HANSEN, Defendant(s).
SHORT FORM ORDER
Present:
HON. ROY S. MAHQM
Justice
MOTION SEQUENCE
MOTION SUBMISSION
The following papers read on this motion:
Notice of Motion XX
Affirmation in Opposition XX
Reply X
Reply Affirmation X
Upon the foregoing Papers, the motion by the Defendant March of Dimes Foundation for an Order dismissing plaintiff's verified complaint pursuant to CPLR §3221 (a)(1) on the ground that a defense is founded upon documentary evidence and the motion by the Defendant Donald R. Hanson for an Order granting summary judgment pursuant to CPLR §3212 which seeks to dismiss he plaintiff's complaint on the basis that there are no issues of fact which would require trial on liability on this matter, are both determined as hereinafter provided:
This personal injury action arises out of a motorcycle accident during an event the 8th Annual "Dee Snider's Bikers for Babies" motorcycle tour allegedly organized by the Defendant March of Dimes which was held on May 23, 2010 commencing and returning to the Hempstead Town Park at Point Lookout, New York.
The Defendant March of Dimes seeks the requested relief upon the ground of an allegedly
Consideration of being permitted to compete, officiate, observe work, or participate in any way in the EVENT(S) or being permitted to enter for any purpose any RESTRICTED AREA (defined as any area requiring special authorization, credentials, or admission to enter or any area to which admission by the general public is restricted or prohibited), EACH OF THE UNDERSIGNED, for himself, his personal representatives, heirs, and next of kin:
Acknowledges, agrees and represents that he has or will immediately upon entering any of such RESTRICTED AREAS, and will continuously thereafter, inspect the RESTRICTED AREAS which he enters, and he further agrees and warrants that, if at any time he is in or about RESTRICTED AREAS and he feels anything to be unsafe, he will immediately advise the officials of such and if necessary will leave the RESTRICTED AREAS and/or refuse to participate further in the EVENT(S).
HEREBY RELEASES, WAIVES, DISCHARGES AND COVENANTS NOT TO SUE the promoters, participants, racing associations, sanctioning organizations or any subdivision thereof, track operators, track owners, officials, car owners, drivers, pit crews rescue personnel, any persons in an RESTRICTED AREA, sponsors, advertisers, owners and _ of premises used to conduct the EVENT(S), premises and event inspectors, surveyors, underwriters, consultants and others who give recommendations, directions, or instructions or engage in risk evaluation or loss control activities regarding the premises or EVENT(S) and each of them their directors, officers, agents, employees, representatives, owners, members, affiliates, successors and assigns all for the purposes' herein referred to as "Releasees," FROM ALL LIABILITY TO THE UNDERSIGNED, his personal representatives, assigns, heirs, and next of kin FOR ANY AND ALL LOSS OR DAMAGE, AND ANY CLAIM OR DEMANDS THEREFOR ON ACCOUNT OF INJURY TO THE PERSON OR PROPERTY OR RESULTING IN DEATH OF THE UNDERSIGNED ARISING OUT OF OR RELATED TO THE EVENT(S), WHETHER CAUSED BY THE NEGLIGENCE OF THE RELEASEES OR OTHERWISE.
HEREBY AGREES TO INDEMNIFY AND SAVE AND HOLD HARMLESS the Releasees and each of them FROM ANY LOSS LIABILITY, DAMAGE, OR COST they may incur arising out of or
related to the UNDERSIGNED'S INJURY OR DEATH WHETHER CAUSED BY THE NEGLIGENCE OF THE RELEASEES OR OTHERWISE.
HEREBY ASSUMES FULL RESPONSIBILITY FOR ANY RISK OF BODILY INJURY, DEATH OR PROPERTY DAMAGE arising out of or related to the EVENT(S) whether caused by the NEGLIGENCE OF RELEASEES or otherwise.
HEREBY acknowledges that THE ACTIVITIES OF THE EVENT(S) ARE VERY DANGEROUS and involve the risk of serious injury and/or death and/or property damage. Each of THE UNDERSIGNED, also expressly acknowledges that INJURIES RECEIVED MAY BE COMPOUNDED OR INCREASED BY NEGLIGENT RESCUE OPERATIONS OR PROCEDURES OF THE RELEASEES.
HEREBY agrees that this Release and Waiver of Liability Assumption of Risk and Indemnity Agreement extends to all acts of negligence by the Releasees, INCLUDING NEGLIGENT RESCUE OPERATIONS and is intended to be as broad and inclusive as is permitted by the laws of the Sate or Province in which the Event(s) is/are conducted and that if any portion thereof is held invalid it is agreed that the balance shall, notwithstanding, continue in full legal force and effect.
I HAVE. READ THIS RELEASE AND WAIVER OF LIABILITY, ASSUMPTION OF RISK AND INDEMNITY AGREEMENT, UNDERSTAND ITS TERMS, UNDERSTAND THAT I HAVE GIVEN UP SUBSTANTIAL RIGHTS BY SIGNING IT, AND HAVE SIGNED IT FREELY AND VOLUNTARILY WITHOUT ANY INDUCEMENT ASSURANCE OR GUARANTEE BEING MADE TO ME AND INTEND MY SIGNATURE TO BE A COMPLETE AND UNCONDITIONAL RELEASE OF ALL LIABILITY TO THE GREATEST EXTENT ALLOWED BY LAW."
In examining the issue of Releases from liability, the Court in Abramowitz v New York University Denta l Center College of Dentistry, 110 AD2d 343, 494 NYS2d 721 (Second Dept., 1985) set forth:
" It is clear, as a general matter, that the law looks with disfavor upon agreements intended to absolve an individual from the consequences of his negligence (see, Gross v. Sweet, 49 N.Y.2d 102, 424 N.Y.S.2d 365, 400N.E.2d 306), and although they are, with certain exceptions, enforceable like any other contract against their signatories, such agreements are always subjected to the closest of judicial scrutiny and will be strictly construed against their drawer (see, Gross v Sweet supra at P. 106, 424 N .Y.S.2d 365, 400 N .E. 2d 306; Van Dyke Prods. v. Eastman Kodak Co., 12 N.Y.2d 301, 304, 239 N.Y.S.2d 337, 189 N.E.2d 693; Boll v. Sharp &
Dohme, 281 App. Div. 568, 570, 121 N.Y.S.2d 20, affd. 307 N.Y. 646, 120 N.E.2d 836). Thus, parties wil not be presumed to have intended to exempt themselves from consequences of their own negligence in the absence of express and unmistakable language to that effect (see, Van Dyke Prods. v. Eastman Kodak Co., supra at p. 304, 239 N.Y.S.2d 337 189 N.E.2d 693 (language which is "absolutely c/ear"); Ciofalo v. Vic Tanney Gyms, 10 N.Y.2d 294, 297, 220 N.Y.S.2d 962 , 177 N.E.2d 925 (language which is "suffciently clear and unequivocal"]; Boll v. Sharp & Dohme, supra at p. 580, 121 N.Y.S.2d 20 (language which is "clear and explicit")), or to put it another way, it must clearly appear 346 that the "limitation of liabilty extends to (the) negligence or other fault of the party attempting to shed his ordinary responsibility" before an exculpatory clause will be given legal effect (Howard v. Handler Bros. & Winell, Inc., 279 App. Div. 72 , 76, 107 N.Y.S.2d 749 affd. 303 N.Y. 990 , 106 N.E.2d 67). Moreover, it is not suffcient that the terms of the asserted agreement be "unambiguous " in their import, they must be understandable " as well (see, Ross v Sweet, supra, at p. 107, 424 N.Y.S.2d 365, 400 N.E.2d 306; Rappaport v. Phil Gottlieb-Satter, Inc., 280 App.Div. 424, 114 N.Y.2d 221, affd. 305 N.Y. 594 , 111 N.E.2d 647; cf. General Obligations Law § 5-701(a)). Abramowitz v. New York University Dental Center College of Dentistry, supra at 723."
Abramowitz v New York University Dental Center College of Dentistry, supra at 723
The Court initially observed that the release by its own terms is devoid of any reference to and/or description of the involvement of the Defendant March of Dimes Foundation in the event which seeks the benefit of the terms of the release (supra). The Court additionally observes that the written provisions of the release are set forth in boiler plate language and are not tailored to the activities in issue in the event for which the release is allegedly given. The Court notes that by its own provisions the release provides for the signature of a witness which is absent from the release submitted.
Based upon all of the foregoing the Defendant March of Dimes Foundation's application for an Order dismissing plaintiff's verified complaint, is denied.
The rule in motions for summary judgment has been succinctly re-stated by the Appellate Division, Second Dept., in Stewart Title Insurance Company, Inc. v. Equitable Land Services, Inc., 207 AD2d 880, 616 NYS2d 650, 651 (Second Dept., 1994):
It is well established that a party moving for summary judgment must make a prima facie showing of entitlement as a matter of law, offering suffcient evidence to demonstrate the absence of any material issues of fact (Winegrad v. New York Univ. Med. Center, 64 2d 851 853 487 N.Y.S.2d 3/6 476 N.E.2d 642; Zuckerman v. City of New York, 49 N.Y.2d 557, 562, 427 N.Y.2d 595, 404 2d 718). Of course, summary jUdgment is a drastic remedy and should not be granted where there is any doubt as to the existence of a triable issue (State Bank of Albany v. McAuliffe 97 A.D.2d 607 467 N.Y.S.2d 944), but once a prima facie showing has been made the burden shifts to the part opposing the motion for summary judgment to produce evidentiary proof in admissible form suffcient
to establish material issues of fact which require a trial of the action (Alvarez v. Prospect Hasp. 68 N.Y.2d 320, 324, 508 N.Y.S.2d 923, 501 N.E.2d 572; Zuckerman v. City of New York, supra, 49 N.Y.2d at 562 427 N.Y.2d 595, 404 N.E.2d 718)."
Upon review of the affdavit of the Defendant Donald R. Hansen and the affdavit of the Plaintiff Carlos DeSousa, there is an issue of fact as to the facts and circumstances of the accident in issue that occurred northbound on the Meadowbrook Parkway and in particular whether the Defendant's motorcycle skidded into the Plaintiffs motorcycle or the Plaintiffs motorcycle came into contact with the rear of the Defendant's motorcycle. As such the Defendant Donald R. Hansen s application for an Order granting summary judgment, is denied.
SO ORDERED.