Bradley Realty Corp. v. State
| Decision Date | 05 November 1976 |
| Citation | 54 A.D.2d 1104,389 N.Y.S.2d 198 |
| Parties | BRADLEY REALTY CORPORATION, Respondent, v. The STATE of New York, Appellant. |
| Court | New York Supreme Court — Appellate Division |
Louis J. Lefkowitz, Atty. Gen., Richard J. Dorsey, Albany, for appellant.
Conboy, McKay, Bachman & Kendall, Lawrence D. Hasseler, Watertown, for respondent.
Before MARSH, P.J., and MOULE, CARDAMONE, MAHONEY and DILLON, JJ.
During the investigation of a triple homicide, the State Police received information that the weapon involved might be found at the bottom of the Black River beneath the Court Street Bridge in the City of Watertown. State Police scuba divers searched the area but the dives were hazardous because of lack of visibility and a swift current. The police decided that the opening of the Taggart Paper Mill Dam, located downstream, would facilitate the search by lowering the level of the water in the vicinity of the bridge. Claimant owned the southerly half of the dam, as well as certain improved and unimproved real property along the south bank of the river.
The police contacted the claimant and at their request, an officer of the claimant corporation executed an affidavit granting them permission 'to release the waters in the Black River at a point in the said river known as the Taggart Paper Mill Dam' and releasing the State 'from any liability resulting from such action.' Thereafter, in August, 1968 a portion of the southern half of the dam was removed by blasting.
Claimant alleges that in May, 1969 its property was damaged by reason of the diversion of the water flow caused by the partial destruction of the dam. The State generally denied the allegations of the claim and also raised the release as an affirmative defense. We are concerned here solely with the affirmative defense, which was tried separately upon the agreement of the parties.
The State appeals from the order of the Court of Claims denying its motion to dismiss the claim based upon the affirmative defense of release.
In the absence of clear and concise language, an instrument purporting to exempt a party from liability for injuries which may occur in the future, will be strictly construed against the party asserting it as a defense (Kaufman v. American Youth Hostels, Inc., 13 Misc.2d 8, 174 N.Y.S.2d 580, mod. on other grounds 6 A.D.2d 223, 177 N.Y.S.2d 587, mod. on other grounds 5 N.Y.2d 1016, 185 N.Y.S.2d 268 158 N.E.2d 128), particularly where it seeks to bar liability for the failure to exercise ordinary care (Boll v. Sharp & Dohme, Inc., 281 App.Div. 568, 121 N.Y.S.2d 20, affd. 307 N.Y. 646, 120 N.E.2d 836).
In order to determine the extent of the State's exemption from liability, the...
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