Chieco v. Paramarketing, Inc.

• Decision Date: 10 June 1996
• Citation: 228 A.D.2d 462,643 N.Y.S.2d 668
• Parties: Alfred CHIECO, Respondent, v. PARAMARKETING, INC., Appellant.
• Court: New York Supreme Court — Appellate Division

Page 668

643 N.Y.S.2d 668

228 A.D.2d 462

Alfred CHIECO, Respondent, v.PARAMARKETING, INC., Appellant.

Supreme Court, Appellate Division Second Department.

June 10, 1996.

Lawrence Van Dyke, Roslyn Heights, for appellant.

Voute, Lohrfink, Magro & Collins, White Plains (Stephen P. Falvey, of counsel), for respondent.

Before ROSENBLATT, J.P., and THOMPSON, PIZZUTO and HART, JJ.

MEMORANDUM BY THE COURT.

In an action to recover damages for personal injuries, the defendant appeals, as limited by its brief, from so much of an order of the Supreme Court, Westchester County(Rosato, J.), entered August 1, 1995, as denied its cross motion for summary judgment dismissing the complaint.

ORDERED that the order is reversed insofar as appealed from, on the law, with costs, the defendant's cross motion for summary judgment is granted, the complaint is dismissed, and the counterclaim is severed.

The plaintiff was injured when he attempted a take-off while wearing a paragliding unit he purchased from the defendant.The record reveals that the plaintiff purchased the unit for $4,000 and that, as part of the purchase package, the defendant offered lessons in use of the unit at its facility in Suffolk County.

Notably, in conjunction with the plaintiff's purchase of the unit, he executed a release and waiver agreement in which, among other things, he agreed to release the defendant from all liability for personal injuries caused by the defendant's negligence.The agreement also recited that the plaintiff understood that paragliding entailed a high degree of risk and that the plaintiff agreed to assume these risks.

Contrary to the plaintiff's contentions, we find that the agreement is enforceable.The language of the agreement clearly and unequivocally expresses the intention of the parties to relieve the defendant of liability (see, Lago v. Krollage, 78 N.Y.2d 95, 99-100, 571 N.Y.S.2d 689, 575 N.E.2d 107).Moreover, the agreement is similarly unequivocal in reciting that the plaintiff was aware of and assumed all risks associated with use of the unit (see, Baschuk v. Diver's Way Scuba, 209 A.D.2d 369, 618 N.Y.S.2d 428).

Inasmuch as the plaintiff did not pay a fee for admission to a place of amusement or recreation, we reject the contention that General Obligations Law § 5-326 is applicable.Rather, he purchased a piece of sporting equipment and then received lessons in conjunction with that purchase at the defendant's private flight facility (see, Baschuk v....