Martinez v Matt-A-Mar Mar. Ltd. Liab. Co.
Annotate this CaseDecided on June 20, 2007
Supreme Court, Suffolk County
Paul Martinez, M.D., Plaintiff,
against
Matt-a-Mar Marina Limited Liability Company and Matt-a-Mar, Inc., Defendants.
29226/06
PLTF'S/PET'S ATTY:
FREDRICK A. SCHULMAN. PLLC.
100 William Street, Suite 310
New York, New York 10038
DEFT'S/RESP'S ATTY:
PEREZ, FUREY & VARVARO
P.O. Box 9372
333 Earle Ovington Boulevard
Uniondale, New York 11553-3644
Arthur G. Pitts, J.
ORDERED that defendants Matt-A Mar Marina Limited Liability Company's motion for summary judgment is denied under the circumstances presented herein. ( CPLR 3212) It is further
ORDERED that defendant Matt-A-Mar, Inc.'s motion to dismiss on the grounds that it was not the owner of the subject property at the time alleged incident is denied with leave to renew upon the submission of supporting documentary evidence.
ORDERED that plaintiff Paul Martinez's cross motion to strike the defendants fourth affirmative defense is granted. (CPLR 3211(b))
The matter at bar is for personal injury sounding in negligence. Plaintiff Paul Martinez, M.D. alleges that on April 17, 2005 he fell while walking at the defendants' marina located at 2255 Wickham Avenue, Mattituck, Suffolk County, New York. At the time of the alleged incident the plaintiff was leasing a slip at the marina. In support of the instant motion the defendants aver that said agreement contained an enforceable clause releasing the defendant from any liability. Said contract provides in part as follows:
The Marina requires a copy of a certificate of
insurance listing Matt-A-Mar Marina, LLC
as named additional insured...The owner ( plaintiff )
agrees to release and discharge Matt-A-Mar Marina
(MAMM)...from any and all responsibility or
liability for injury...or damage to persons or property
in connection with MAMM docking facilities or [*2]
marina. This release and discharge shall cover
without limitation any loss or damage resulting from
MAMM employees...
I understanding that swimming and boating can be
hazardous activities. I assume all risks of personal
injury and property damage. I release and forever
discharge and hold Matt-A-Mar Marina, LLC its
members and employees harmless of any liability
or claim regardless of cause...
A party moving for summary judgment must make a prima facie showing of entitlement to judgment as a matter of law, offering sufficient evidence to demonstrate the absence of any material issues of fact. ( Winegrad v. New York University Medical Center, 64 N.Y2d 851,853, 487 NYS2d 316; Zuckerman v. City of New York 49 NY2d 557,562). Of course, summary judgment is a drastic remedy and should not be granted where there is any doubt as to the existence of a triable issue ( State Bank of Albany v. McAuliffe, 97 AD2d 607, 467 NYS2d 944), but once a prima facie showing has been made, the burden shifts to the party opposing the motion to produce evidentiary proof in admissible form sufficient to establish material issues of fact which require a trial of the action.
( Alvarez v. Prospect Hospital, 68 NY2d 320, 324, 508 NYS2d 923 [1986] )
It is well settled that an exculpatory provision is enforceable if its language expresses in unequivocal terms the intent of the parties to relieve the defendant of liability for the defendant's breach of contract or negligence. Although ambiguities in an exclusionary clause are to be construed against the drafter, it is well established that when the meaning of a contract is plain and clear, it is entitled to be enforced [*3]according to its terms. ( Uribe v. Merchant's Bank, 293 AD2d 336, 670 NYS2d 693 [1998] ; Blumenkrantz v May, 293 AD2d 850, 740 NYS2d 497 [ 3rd Dept 2002] ) However, an exculpatory clause will not be deemed to insulate a party from liability for his own negligent acts unless the intention of the parties is expressed in unmistakable language. ( Lago v. Krollage 78 NY2d 95, 571 NYS2d 689 [1991] ) Furthermore, it must appear plainly and precisely that the "limitation of liability extends to negligence or other fault of the party attempting to shed his ordinary responsibility." (Gross v. Sweet, 49 NY2d 102, 107, 424 NYS2d 365 [1979] ) It has further been held that the use of broad sweeping language providing release from "any and all responsibility or liability of any nature whatsoever for any loss of property or personal injury will not bar claims based upon negligence." ( Trummer v. Niewisch, 17 AD3d 349, 792 NYS2d 596 [2nd Dept 2005] )
In the matter at bar, the language of the subject release clearly is written in such broad and sweeping terms. Upon review of the specific language set forth in the release, the stringent standard requiring in unequivocally stated terms that it was the parties intention to insulate the defendant from liability by its own negligence has not been met. As such, the defendants' motion for summary judgment is denied.
Pursuant to the foregoing the plaintiff's cross motion fo strike the defendants' fourth affirmative defense alleging release and discharge is granted. CPLR 3211(b) provides that a party may move for judgment dismissing one or more defenses, on the ground that a defense is not stated or has no merit. " The standard by which this motion must be decided is whether the defendants actually have a defense not whether they have actually stated one ( Kelly v. Bank of Buffalo, 32 AD2d 875, 302 NYS2d 60; 4 Weinstein-Korn-Miller, New York Civil Practice 3211.44)." ( Greenblatt v. Johannssen, 80 Misc 2d 436, 363 NYS2d 203, 204 [Sup. Ct. Suffolk Cty. 1974] ) Herein, it has previously been [*4]established that the exculpatory clauses the defendants seek to implement were not in unequivocal terms which would warrant insulation from a negligence claim and as such, the plaintiffs cross motion to dismiss said affirmative defense must be granted.
This shall constitute the decision and order of the Court.
So ordered.
Dated: Riverhead, New York
June 20, 2007J.S.C.
FINAL DISPOSITIONXNON-FINAL DISPOSITION_____ DO NOT SCAN
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