66 A.D.2d 1002 | N.Y. App. Div. | 1978
Order unanimously reversed, with costs, and motion granted. Memorandum: Plaintiff Albert Wurzer paid defendants Seneca 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 the defendants’ facilities and equipment. During the course of the day he allegedly broke a vertebra 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 engaged 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 executed a waiver and hold harmless agreement and had agreed not to commence any action for personal injuries. Plaintiff moved for summary judgment to strike this second affirmative defense on the ground that it contravened section 5-326 of the General Obligations Law. The court ruled that an issue of fact was presented as to whether defendants operated a place 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 facilities 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 exempting pools, gymnasiums, places of public amusement or recreation and similar establishments from liability for negligence void and unenforceable. Every covenant, agreement or understanding in or in connec
