Order unanimously reversed, with costs, and motion granted. Memorandum: Plaintiff Albert Wurzer paid defendants Seneсa Sport Parachute Club ("SSPC”) and Howard F. Martin, Jr., a fee to enter upon defendants’ parachute and recreation center to take parachuting instructions and otherwise to use thе defendants’ facilities and equipment. During the course of the day he allegedly broke a vertеbra in his back. Alleging causes of action both contract and negligence, plaintiff Wurzer has sued both SSPC and Martin. Defendants in their amended answer admitted that they agreed to instruct the plaintiff properly with regard to his parachute jump. Additionally, the defendants specifically admitted paragraph "second” of the complaint to wit: "second: That upon information and belief, defendant, senega sport parachute club is a domestic corporation engagеd in the business of instructing parachutists in operating a parachute jumping and recreation center at Martin Road, Seneca Falls, Seneca County, New York.” Defendants also pleaded a second affirmative defense that plaintiff Wurzer prior to the accident had exеcuted a waiver and hold harmless agreement and had agreed not to commence аny action for personal injuries. Plaintiff moved for summary judgment to strike this second affirmative defensе on the ground that it contravened section 5-326 of the General Obligations Law. The court ruled that аn issue of fact was presented as to whether defendants operated a placе of amusement or recreation or similar establishment within the meaning of section 5-326 of the General Obligations Law and referred the matter to Trial Term. In an affidavit submitted in support of his motion, plaintiff alleged: "That on May 14, 1977, deponent entered upon premises know as the Seneca Sport Parachute Club at Martin Road, Seneca Falls, New York for recreational purposes and entered into an agreement with defendants whereby defendants agreed to properly instruct your deponent with regard to parachute jumping and provide equipment and faсilities for a parachute jump. In consideration therefore and in consideration for the use of the defendants’ recreational equipment and facilities, deponent paid $50.00 in cash and defendants accepted the same.” Defendants submitted no affidavit to refute these statements from anyone with personal knowledge of the incidents surrounding plaintiff’s alleged injury. The statute, section 5-326 of the General Obligations Law, relied upon by plaintiff provides: "§ 5-326. Agreements exеmpting pools, gymnasiums, places of public amusement or recreation and similar establishments from liability for negligence void and unenforceable. Every covenant, agreement or undеrstanding in or in connec
Wurzer v. Seneca Sport Parachute Club
411 N.Y.S.2d 763
N.Y. App. Div.1978Check TreatmentAI-generated responses must be verified and are not legal advice.