Barone v. St. Joseph's Villa

—Order unanimously reversed on the law with costs, motion for summary judgment denied and complaint reinstated. Memorandum: Plaintiff commenced this action to recover for personal injuries that she sustained in a fall while participating in a “challenge” course owned by defendant. Supreme Court granted defendant’s motion for summary judgment dismissing the complaint based on a release signed by plaintiff before she was injured and, upon reargument, adhered to its determination. On appeal, plaintiff contends that the release is unenforceable under General Obligations Law § 5-326 and cannot be construed to bar a claim alleging defendant’s negligence.

General Obligations Law § 5-326 does not apply to this case because defendant is not the owner or operator of a “pool, gymnasium, place of amusement or recreation, or similar establishment” (General Obligations Law § 5-326; see, Lago v Krollage, 78 NY2d 95 , 101; Gross v Sweet, 49 NY2d 102 , 107;

We conclude, however, that the release may not be construed to exculpate defendant for its own negligence absent clear and explicit language to that effect (see, Gross v Sweet, supra, at 107-110 ; see also, Lago v Krollage, supra, at 99-100 ; Ciofalo v Tanney Gyms, 10 NY2d 294 , 297). The release recites that plaintiff will hold defendant and its agents “harmless from all damages, losses and expenses” “arising out of [plaintiffs] use of the premises, operations, or facilities of [defendant].” Defendant’s negligence is not mentioned. Thus, the release may not be construed to bar the claim that plaintiff was injured as a result of defendant’s negligence (see, Bennett v Genesee Marina, 237 AD2d 908 , 908-909; Machowski v Gallant, 234 AD2d 933 , 934). (Appeal from Order of Supreme Court, Monroe County, Bergin, J. — Reargument.) Present — Denman, P. J., Hayes, Pigott, Jr., and Fallon, JJ.