Marc v Middle Country Ctr. Sch. Dist.

[*1] Marc v Middle Country Ctr. Sch. Dist. 2017 NY Slip Op 51678(U) Decided on December 11, 2017 Supreme Court, Suffolk County Mayer, J. Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. This opinion is uncorrected and will not be published in the printed Official Reports.

Decided on December 11, 2017
Supreme Court, Suffolk County

Murat Marc, Plaintiff(s),

against

Middle Country Center School District, LONG ISLAND FLAG FOOTBALL LEAGUE, INC. and LONG ISLAND FLAG FOOTBALL, INC., Defendant(s).



3015-2016



Siben & Siben, LLP

Attorneys for Plaintiff

90 East Main Street

Bay Shore, New York 11706

Havkins Rosenfeld Ritzert & Varriale

Attorneys for Defendants

1065 Avenue of the Americas, Suite 800

New York, New York 10018
Peter H. Mayer, J.

Upon the reading and filing of the following papers in this matter: (1) Notice of Motion by the defendants, dated June 15, 2016, and supporting papers; (2) Affirmation in Opposition by the plaintiff, dated August 22, 2016, and supporting papers; (3) Reply Affirmation by the defendants, dated September 15, 2016, and supporting papers; (4) Sur Reply by the plaintiff, dated September 21, 2016, and supporting papers; and now

UPON DUE DELIBERATION AND CONSIDERATION BY THE COURT of the foregoing papers, the motion is decided as follows: it is

ORDERED that the motion (seq. # 001) by defendants, Middle Country Central School District ("School District") and Long Island Flag Football, Inc., s/h/a Long Island Flag Football League, Inc. and Long Island Flag Football, Inc. ("the League"), which seeks an Order dismissing the plaintiff's complaint pursuant to CPLR 3211(a)(1) and (5), is hereby granted; and it is further

ORDERED that counsel for defendants shall promptly serve a copy of this Order upon counsel for all parties by First Class Mail, and shall promptly thereafter file the affidavit(s) of such service with the Suffolk County Clerk.

In this action, plaintiff alleges that on October 4, 2015 he injured his left foot while playing in a League flag football game, when he jumped to catch a pass and landed on a concealed sprinkler head. The game was being played on a field located on the grounds of Newfield High School, which is operated by the defendant School District. Prior to playing in the football game, plaintiff and his teammates signed a Waiver and Release of Liability ("Release"), which states:

In return for my being allowed to participate in any way in the LONG ISLAND FLAG FOOTBALL LEAGUE, INC., I release and agree not to sue the LONG ISLAND FLAG FOOTBALL LEAGUE, INC., its employees directors and non-employees such as referees, coaches, agents, sponsors, and owners of fields used, from all present and future claims made by me or my family, estate, heirs or assigns for property damage, personal injury, or wrongful death arising as a result of my participation in the LONG ISLAND FLAG FOOTBALL LEAGUE, INC. and caused by the ordinary negligence of the parties above, wherever, whenever, or however the same may occur. I understand and agree that those listed above are not responsible for any injury or property damage arising out of my participation out of my participation (sic) in the LONG ISLAND FLAG FOOTBALL LEAGUE, INC., even if caused by their ordinary negligence. I understand that participation in the LONG ISLAND FLAG FOOTBALL LEAGUE, INC. involves certain risks including, but not limited to, serious injury, severe economic losses, permanent disability, and even death. I am voluntarily participating in the LONG ISLAND FLAG FOOTBALL LEAGUE, INC. with knowledge of the danger involved and agree to accept all risks of such participation. I certify that I am in excellent physical health, and may participate [*2]in strenuous and hazardous physical activities, including the flag football to be played in the LONG ISLAND FLAG FOOTBALL LEAGUE, INC. I agree that prior to participating, I will inspect the facilities and equipment to be used, and if I believe anything unsafe, I will immediately advise my coach of said condition(s) and refuse to participate. Permission is granted for me to receive medical treatment, if needed. I also agree to indemnify and hold harmless those listed above for all claims arising out of my participation in the LONG ISLAND FLAG FOOTBALL LEAGUE, INC. and all related activities. I understand that this document is intended to be as broad and inclusive as permitted by the State of New York and agree that if any portion of this agreement is invalid, the remainder will continue in full legal force and effect. I further agree that any legal proceedings related to this waiver will take place in Suffolk County, New York. I am of legal age and am freely signing this agreement.

We have read this agreement and understand that by signing this form, we are giving up legal rights and remedies and that the terms of this release are binding on each one of us.

The defendants contend in their dismissal motion that the plaintiff assumed the risk of injury while playing in the game, and that by signing the Release, the plaintiff effectively released the defendants from liability for any injuries plaintiff allegedly sustained during the game. Defendants conclude, therefore, that they are entitled to dismissal of plaintiff's complaint pursuant to CPLR 3211(a)(1) and (5).

Generally, on a CPLR 3211 motion to dismiss, the court will accept the facts alleged in the complaint as true, accord plaintiffs the benefit of every possible favorable inference, and determine only whether the facts as alleged fit within any cognizable legal theory (see Walton v New York State Dept. of Corr. Services, 13 NY3d 475, 484, 893 NYS2d 453 [2009], quoting Nonnon v City of New York, 9 NY3d 825, 827, 842 NYS2d 756 [2007]). Pursuant to CPLR 3211(a)(1), a party may move for dismissal of one or more causes of action on the ground that "a defense is founded upon documentary evidence." Likewise, a party may move for dismissal pursuant to CPLR 3211(a)(5) on the ground that "the cause of action may not be maintained because of ... [a] release" of liability.

A motion to dismiss pursuant to CPLR 3211(a)(1) on the ground that the action is barred by documentary evidence may be appropriately granted where the documentary evidence utterly refutes the plaintiff's factual allegations, conclusively establishing a defense as a matter of law (see AG Capital Funding Partners, L.P. v State Street Bank and Trust Co., 5 NY3d 582, 808 NYS2d 573 [2005]; Goshen v Mutual Life Ins. Co. of New York, 98 NY2d 314, 746 NYS2d 858 [2002]; Leon v Martinez, 84 NY2d 83, 614 NYS2d 972 [1994]; Thompsen v Baier, 84 AD3d 1062, 923 NYS2d 607 [2d Dept 2011]; Rietschel v Maimonides Medical Center, 83 AD3d 810, 921 NYS2d 290 [2d Dept 2011]). In other words, the documentary evidence must resolve all factual issues as a matter of law and conclusively dispose of the plaintiff's claim (see Palmetto Partners, L.P. v AJW Qualified Partners, LLC, 83 AD3d 804, 921 NYS2d 260 [2d Dept 2011]; Paramount Transp. Sys., Inc. v Lasertone Corp., 76 AD3d 519, 520, 907 NYS2d 498 [2d Dept 2010]).

When a defendant moves for CPLR 3211(a)(1) dismissal based on documentary evidence that the plaintiff signed a release of liability in favor of the defendant, dismissal may be granted where the terms of the release are clear, unambiguous and conclusively dispose of the matter (see Burgos v New York Presbyterian Hosp., ___ AD3d ___, 2017 NY Slip Op 07585 [2d Dept 2017]; Rudovic v Rudovic, 131 AD3d 1225, 16 NYS3d 856 [2d Dept 2015]). In effect, a release is a contract and its construction is governed by contract law (see Outdoors Clothing Corp. v Schneider, 153 AD3d 717, 60 NYS3d 302 [2d Dept 2017]; Kaminsky v Gamache, 298 AD2d 361, 751 NYS2d 254 [2d Dept 2002]). Absent a statute or public policy to the contrary, a contractual provision absolving a party from its own negligence will be enforced (see Sommer v Federal Signal Corp., 79 NY2d 540, 583 NYS2d 957 [1992]; Deutsch v Woodridge Segway, LLC, 117 AD3d 776, 985 NYS2d 716 [2d Dept 2014]; Princetel, LLC v Buckley, 95 AD3d 855, 944 NYS2d 191 [2d Dept 2012]). A defendant establishes its prima facie entitlement to dismissal by producing the waiver and release signed by the plaintiff (see Brookner v New York Roadrunners Club, Inc., 51 AD3d 841, 858 NYS2d 348 [2d Dept 2008]; Bufano v National Inline Roller Hockey Assn., 272 AD2d 359, 707 NYS2d 223 [2d Dept 2000]).

If the language of a release is clear and unambiguous, the signing of a release is a "jural act" binding on the parties (see Booth v 3669 Delaware, Inc., 92 NY2d 934, 680 NYS2d 899 [2d Dept 1998]; Mangini v McClurg, 24 NY2d 556, 301 NYS2d 508 [1969]). The Court finds that the language of the subject Release is clear and unambiguous and is, therefore, valid, enforceable and binding on the parties (see Lago v Krollage, 78 NY2d 95, 571 NYS2d 689 [1991]; Booth v 3669 Delaware, Inc., 92 NY2d 934, 680 NYS2d 899 [2d Dept 1998]). A release will not be treated lightly, and will not be set aside by a court without a showing of duress, illegality, fraud, or mutual mistake (see Liotti v Galasso, Langione and Botter, 128 AD3d 912, 8 NYS3d 578 [2d Dept 2015]; Seff v Meltzer, Lippe, Goldstein & Schlissel, P.C., 55 AD3d 592, 865 NYS2d 323 [2d Dept 2008]; Shklovskiy v Khan, 273 AD2d 371, 709 NYS2d 208 [2d Dept 2000]; Delaney v County of Westchester, 90 AD2d 819, 455 NYS2d 839 [2d Dept 1982], appeal dismissed 59 NY2d 763 [1983]; Thives v Holmes Ambulance Service Corp., 78 AD2d 651, 432 NYS2d 235 [2d Dept 1980]). Plaintiff in this matter makes no claim of duress, illegality, fraud, or mutual mistake in the signing of the subject Release. Instead, plaintiff alleges in opposition to the motion that the Release is void as against pubic policy pursuant to GOL § 5-326, and that defendant is, therefore, barred from relying on the Release in seeking dismissal of plaintiff's complaint. GOL § 5-326 renders void and unenforceable agreements that exempt certain places of public amusement, recreation and similar establishments from liability. In this regard GOL § 5-326 states:

Every covenant, agreement or understanding in or in connection with, or collateral to, any contract, membership application, ticket of admission or similar writing, entered into between the owner or operator of any pool, gymnasium, place of amusement or recreation, or similar establishment and the user of such facilities, pursuant to which such owner or operator receives a fee or other compensation for the use of such facilities, which exempts the said owner or operator from liability for damages caused by or resulting from the negligence of the owner, operator or person in charge of such establishment, or their agents, servants or employees, shall be deemed to [*3]be void as against public policy and wholly unenforceable.

In general, when a participant pays a fee to use recreational facilities, or pays league fees and the league pays for use of those facilities, a waiver and release of liability signed by the participant is void pursuant to GOL § 5-326 (see Falzone v City of New York, 128 AD3d 889, 9 NYS3d 165 [2d Dept 2015]). To void a release of liability executed by a user of a recreational facility pursuant to GOL § 5—326, there must be an evidentiary showing that the individual paid a fee for use of the facility (see Lago v Krollage, 78 NY2d 95, 571 NYS2d 689 [1991]; Stuhlweissenburg v Town of Orangetown, 223 AD2d 633, 636 NYS2d 853 [2d Dept 1996]; Stone v Bridgehampton Race Circuit, 217 AD2d 541, 629 NYS2d 80 [2d Dept 1995]; Miranda v Hampton Auto Raceway, 130 AD2d 558, 515 NYS2d 291 [2d Dept 1987]).

A plaintiff's complaint will be properly dismissed pursuant to CPLR 3211(a)(5) where the plaintiff claims that the Release is void pursuant to GOL §5-326, but fails to establish that he or she paid a fee directly to the owner or operator of the recreational facility for use of the facility where the alleged injury occurred (see Brookner v New York Roadrunners Club, Inc., 51 AD3d 841, 858 NYS2d 348 [2d Dept 2008]; Bufano v National Inline Roller Hockey Ass'n, 272 AD2d 359, 707 NYS2d 223 [2d Dept 2000]). When a plaintiff fails to produce any evidence that he or she paid a fee for admission to, or use of, a municipality's field, GOL § 5—326 will not void a release of liability executed by the plaintiff prior to participating in a sporting event (see Stuhlweissenburg v Town of Orangetown, 223 AD2d 633, 636 NYS2d 853 [2d Dept 1996]). Under such circumstances, the plaintiff's waiver of liability is enforceable and not void as against public policy in violation of GOL § 5—326 (see Lago v Krollage, 78 NY2d 95, 571 NYS2d 689 [1991]; Lee v Boro Realty, LLC, 39 AD3d 715, 832 NYS2d 453 [2d Dept 2007]; Castellanos v Nassau/Suffolk Dek Hockey, 232 AD2d 354, 648 NYS2d 143 [2d Dept 1996]; Stuhlweissenburg v Town of Orangetown, 223 AD2d 633, 636 NYS2d 853 [2d Dept 1996]; Stone v Bridgehampton Race Circuit, 217 AD2d 541, 629 NYS2d 80 [2d Dept 1995]; Koster v Ketchum Communications, 204 AD2d 280, 611 NYS2d 298 [2d Dept 1994]).

Here, by producing the Waiver and Release signed by the plaintiff, the defendants established prima facie entitlement to dismissal of the plaintiff's complaint (see Brookner v New York Roadrunners Club, Inc., 51 AD3d 841, 858 NYS2d 348 [2d Dept 2008]; Bufano v National Inline Roller Hockey Assn., 272 AD2d 359, 707 NYS2d 223 [2d Dept 2000]). In opposition, plaintiff has failed to show he paid to use the field where he was allegedly injured, or that any portion of his League fee was paid to the School District for the use of the field. In fact, the affidavit of the defendant League's President, George Hignell, shows that the School District "did not require a fee for the use of its fields" and that "[n]either the plaintiff nor the [L]eague paid a fee for use of Newfield High School athletic field" where the plaintiff is alleged to have been injured. Therefore, the Release is not void as against public policy pursuant to GOL § 5—326.

Based upon the foregoing, the plaintiff's complaint is dismissed pursuant to CLR 3211(a)(1) and (a)(5) (see CPLR 3211[a][1]; CPLR 3211[a][5]; Burgos v New York Presbyterian Hosp., ___ AD3d ___, 2017 NY Slip Op 07585 [2d Dept 2017]; Rudovic v Rudovic, 131 AD3d [*4]1225, 16 NYS3d 856 [2d Dept 2015]; Brookner v New York Roadrunners Club, Inc., 51 AD3d 841, 858 NYS2d 348 [2d Dept 2008]; Bufano v National Inline Roller Hockey Ass'n, 272 AD2d 359, 707 NYS2d 223 [2d Dept 2000]).

This constitutes the Decision and Order of the Court.

Dated:December 11, 2017

PETER H. MAYER, J.S.C.