Supreme Court, Appellate Division, Second Department, New York.
Chet D. SCHWARTZ, respondent,
v.
Terence MARTIN, defendant third-party plaintiff,
Century Road Club Association, et al., defendants-appellants,
City of New York, et al., defendants third-party defendants-appellants.
March 29, 2011.
Background: Licensee brought personal injury action against bicycle racing club, arising out of injuries sustained during club-sponsored race. Licensee moved to add city and parks department as defendants, and racing club moved for summary judgment. The Supreme Court, Kings County, Velasquez, J., granted licensee's motion and denied club's motion. Defendants appealed.
Holdings: The Supreme Court, Appellate Division, held that:
(1) by signing waiver and release, bicycle racing licensee released racing club and city from liability for injuries sustained arising from ordinary negligence during bicycle race;
(2) releases did not violate statute providing that agreements exempting places of public amusement or recreation from liability for negligence are void and unenforceable; and
(3) licensee was not entitled to leave to amend complaint to add city and city department of parks and recreation as defendants.
Reversed.
By signing waiver and release, bicycle racing licensee released racing club and city from liability for injuries sustained arising from ordinary negligence during bicycle race.
Releases agreed to by licensee when purchasing racing license, which released racing club and city from liability for injuries sustained arising from ordinary negligence during bicycle race, did not violate statute providing that agreements exempting places of public amusement or recreation from liability for negligence are void and unenforceable, since licensee did not pay a fee to city park in which he was injured during bicycle race. McKinney's General Obligations Law § 5–326.
Licensee who had signed waiver and release that released racing club and city from liability for injuries sustained arising from ordinary negligence during bicycle race was not entitled to leave to amend complaint to add city and city department of parks and recreation as defendants in personal injury action, since proposed amendment was patently devoid of merit.
MARK C. DILLON, J.P.,
JOHN M. LEVENTHAL,
CHERYL E. CHAMBERS, and
LEONARD B. AUSTIN, JJ.
In an action to recover damages for personal injuries, the defendants Century Road Club Association and USA Cycling, Inc., and the defendants third-party defendants, City of New York and the New York City Department of Parks and Recreation, appeal from an order of the Supreme Court, Kings County (Velasquez, J.), dated July 30, 2010, which denied, with leave to renew upon the completion of discovery, the cross motion of the defendants Century Road Club Association and USA Cycling, Inc., for summary judgment dismissing the complaint insofar as asserted against them, and granted the plaintiff's motion for leave to amend the complaint to add the City of New York and *1202 the New York City Department of Parks and Recreation as defendants.
ORDERED that the appeal by the defendants Century Road Club Association and USA Cycling, Inc., from so much of the order as granted the plaintiff's motion for leave to amend the complaint to add the City of New York and the New York City Department of Parks and Recreation as defendants is dismissed, as those defendants are not aggrieved by that portion of the order appealed from ( see CPLR 5511); and it is further,
ORDERED that the appeal by the defendants third-party defendants from so much of the order as denied, with leave to renew upon the completion of discovery, the cross motion of the defendants Century Road Club Association and USA Cycling, Inc., for summary judgment dismissing the complaint insofar as asserted against them is dismissed, as the defendants third-party defendants are not aggrieved by that portion of the order appealed from ( see CPLR 5511); and it is further,
ORDERED that the order is reversed, on the law, the cross motion of the defendants Century Road Club Association and USA Cycling, Inc., for summary judgment dismissing the complaint insofar as asserted against them is granted and the plaintiff's motion for leave to amend the complaint to add the City of New York and the New York City Department of Parks and **219 Recreation as defendants is denied; and it is further,
ORDERED that one bill of costs is awarded to the appellants, payable by the respondent.
In 2001, 2005, and 2009, the plaintiff purchased a racing license from the defendant USA Cycling, Inc. (hereinafter USAC). Each license application included an "acknowledgment of risk, release of liability, indemnification agreement and covenant not to sue," which the plaintiff signed. The latest acknowledgment provided, among other things, that the plaintiff released USAC, its affiliates, property owners and public entities, from "any and all rights and claims including claims arising from the releasees' own negligence ... and from any and all damages which may be sustained by me directly or indirectly in connection with, or arising out of, my participation in or association with a USA Cycling event ... in which I may participate as a rider ... official, volunteer, or in any other manner." Approximately two months after signing the latest release, the plaintiff was acting as a marshal at a Century Road Club Association (hereinafter CRCA) club race in Central Park, which was a required condition to participating in CRCA club races in Central Park. During the race, the plaintiff allegedly was struck and injured by a bicycle ridden by the defendant Terence Martin, who was not participating in the race.
The releases clearly and unequivocally expressed the intention of the parties to relieve USAC, its affiliate CRCA, the City of New York, and the New York City Department of Parks and Recreation of liability for their own negligence ( see Lago v. Krollage, 78 N.Y.2d 95, 99–100, 571 N.Y.S.2d 689, 575 N.E.2d 107; Brookner v. New York Roadrunners Club, Inc., 51 A.D.3d 841, 858 N.Y.S.2d 348; Tedesco v. Triborough Bridge & Tunnel Auth., 250 A.D.2d 758, 673 N.Y.S.2d 181; Castellanos v. Nassau/Suffolk Dek Hockey, 232 A.D.2d 354, 355, 648 N.Y.S.2d 143). Further, the releases do not violate General Obligations Law § 5–326. Although the plaintiff purchased a racing license from USAC, he did not pay a fee to use Central Park ( see Lago v. Krollage, 78 N.Y.2d at 101, 571 N.Y.S.2d 689, 575 N.E.2d 107; Bufano v. National Inline Roller Hockey Assn., 272 A.D.2d 359, 707 N.Y.S.2d 223; cf. Petrie v. Bridgehampton Rd. Races Corp., 248 A.D.2d 605, 606, 670 N.Y.S.2d 504). While an enforceable release will not insulate a party from grossly negligent conduct ( see Sommer v. Federal Signal Corp., 79 N.Y.2d 540, 544, 583 N.Y.S.2d 957, 593 N.E.2d 1365; Gross v. Sweet, 49 N.Y.2d 102, 106, 424 N.Y.S.2d 365, 400 N.E.2d 306), the alleged acts of the defendants do not rise to the level of intentional wrongdoing or evince a reckless indifference to the rights of others ( see Goldstein v. Carnell Assoc., Inc., 74 A.D.3d 745, 746–747, 906 N.Y.S.2d 905; Brookner v. New York Roadrunners Club, Inc., 51 A.D.3d at 842, 858 N.Y.S.2d 348). Consequently, CRCA and USAC established, prima facie, their entitlement to judgment as a matter of law ( see Thiele v. Oakland Val., Inc., 72 A.D.3d 803, 898 N.Y.S.2d 481; Boateng v. Motorcycle Safety School, Inc., 51 A.D.3d 702, 703, 858 N.Y.S.2d 312). In opposition, no triable issue of fact was raised ( see generally Zuckerman v. City of New York, 49 N.Y.2d 557, 562, 427 N.Y.S.2d 595, 404 N.E.2d 718). Contrary to the plaintiff's contention, the cross motion for summary judgment was not premature ( see Conte v. Frelen Assoc., LLC, 51 A.D.3d 620, 621, 858 N.Y.S.2d 258). Accordingly, the Supreme Court should have granted the cross motion of CRCA and USAC for summary judgment dismissing the complaint insofar as asserted against them.
In light of our determination, the Supreme Court erred in granting the plaintiff's motion for leave to amend the complaint to add the City of New York and the New York City Department of Parks and Recreation as defendants, as the proposed amendment was patently devoid of merit ( see Mid–Valley Oil Co., Inc. v. Hughes Network Sys., Inc., 54 A.D.3d 393, 862 N.Y.S.2d 291; Spano v. Northwood Tree Care, Inc., 48 A.D.3d 667, 668, 852 N.Y.S.2d 289).
N.Y.A.D. 2 Dept.,2011.
Schwartz v. Martin
82 A.D.3d 1201, 919 N.Y.S.2d 217, 2011 N.Y. Slip Op. 02650