| Schwartz v Martin |
| 2011 NY Slip Op 02650 [82 AD3d 1201] |
| March 29, 2011 |
| Appellate Division, Second Department |
| Chet D. Schwartz, Respondent, v Terence Martin,Defendant/Third-Party Plaintiff, Century Road Club Association et al., Appellants, and City ofNew York et al., Defendants/Third-Party Defendants-Appellants. |
—[*1] Bonina & Bonina, P.C., Brooklyn, N.Y. (Andrea E. Bonina of counsel), for respondent. Savona, D'Erasmo & Hyer, LLC, New York, N.Y. (Raymond M. D'Erasmo of counsel), fordefendant/third-party plaintiff.
In an action to recover damages for personal injuries, the defendants Century Road ClubAssociation and USA Cycling, Inc., and the defendants/third-party defendants, City of New Yorkand the New York City Department of Parks and Recreation, appeal from an order of theSupreme Court, Kings County (Velasquez, J.), dated July 30, 2010, which denied, with leave torenew upon the completion of discovery, the cross motion of the defendants Century Road ClubAssociation and USA Cycling, Inc., for summary judgment dismissing the complaint insofar asasserted against them, and granted the plaintiff's motion for leave to amend the complaint to addthe City of New York and 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 complaintto add the City of New York and the New York City Department of Parks and Recreation asdefendants is dismissed, as those defendants are not aggrieved by that portion of the orderappealed from (see CPLR 5511); and it is further,
Ordered that the appeal by the defendants/third-party defendants from so much of the orderas denied, with leave to renew upon the completion of discovery, the cross motion of thedefendants Century Road Club Association and USA Cycling, Inc., for summary judgmentdismissing the complaint insofar as asserted against them is dismissed, as thedefendants/third-party defendants are not aggrieved by that portion of the order appealed from(see CPLR 5511); and it is further,[*2]
Ordered that the order is reversed, on the law, the crossmotion of the defendants Century Road Club Association and USA Cycling, Inc., for summaryjudgment dismissing the complaint insofar as asserted against them is granted and the plaintiff'smotion for leave to amend the complaint to add the City of New York and the New York CityDepartment of Parks and 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 USACycling, Inc. (hereinafter USAC). Each license application included an "acknowledgment of risk,release of liability, indemnification agreement and covenant not to sue," which the plaintiffsigned. The latest acknowledgment provided, among other things, that the plaintiff releasedUSAC, its affiliates, property owners and public entities, from "any and all rights and claimsincluding claims arising from the releasees' own negligence . . . and from any andall damages which may be sustained by me directly or indirectly in connection with, or arisingout of, my participation in or association with a USA Cycling event . . . in which Imay 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 ata Century Road Club Association (hereinafter CRCA) club race in Central Park, which was arequired condition to participating in CRCA club races in Central Park. During the race, theplaintiff 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 relieveUSAC, its affiliate CRCA, the City of New York, and the New York City Department of Parksand Recreation of liability for their own negligence (see Lago v Krollage, 78 NY2d 95,99-100 [1991]; Brookner v New York Roadrunners Club, Inc., 51 AD3d 841 [2008];Tedesco v Triborough Bridge & Tunnel Auth., 250 AD2d 758 [1998]; Castellanos vNassau/Suffolk Dek Hockey, 232 AD2d 354, 355 [1996]). Further, the releases do notviolate General Obligations Law § 5-326. Although the plaintiff purchased a racing licensefrom USAC, he did not pay a fee to use Central Park (see Lago v Krollage, 78 NY2d at101; Bufano v National Inline Roller Hockey Assn., 272 AD2d 359 [2000]; cf. Petriev Bridgehampton Rd. Races Corp., 248 AD2d 605, 606 [1998]). While an enforceablerelease will not insulate a party from grossly negligent conduct (see Sommer v Federal SignalCorp., 79 NY2d 540, 544 [1992]; Gross v Sweet, 49 NY2d 102, 106 [1979]), thealleged acts of the defendants do not rise to the level of intentional wrongdoing or evince areckless indifference to the rights of others (see Goldstein v Carnell Assoc., Inc., 74AD3d 745, 746-747 [2010]; Brookner v New York Roadrunners Club, Inc., 51 AD3d at842). Consequently, CRCA and USAC established, prima facie, their entitlement to judgment asa matter of law (see Thiele v Oakland Val., Inc., 72 AD3d 803 [2010]; Boateng vMotorcycle Safety School, Inc., 51 AD3d 702, 703 [2008]). In opposition, no triable issue offact was raised (see generally Zuckerman v City of New York, 49 NY2d 557, 562[1980]). Contrary to the plaintiff's contention, the cross motion for summary judgment was notpremature (see Conte v Frelen Assoc., LLC, 51 AD3d 620, 621 [2008]). Accordingly, theSupreme Court should have granted the cross motion of CRCA and USAC for summaryjudgment dismissing the complaint insofar as asserted against them.
In light of our determination, the Supreme Court erred in granting the plaintiff's motion forleave to amend the complaint to add the City of New York and the New York City Department ofParks 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 AD3d 393 [2008];Spano v Northwood Tree Care, Inc., 48 AD3d 667, 668 [2008]). Dillon, J.P., Leventhal,Chambers and Austin, JJ., concur.