Melis v. Hellenic Orthodox Cmty.

• Decision Date: 21 March 2017
• Docket Number: INDEX NO. 156637/2016
• Parties: Melis, Panagiota v. Hellenic Orthodox Community
• Court: New York Supreme Court

2017 NY Slip Op 30534(U)

Melis, Panagiota
v.
Hellenic Orthodox Community

INDEX NO. 156637/2016

SUPREME COURT OF THE STATE OF NEW YORK NEW YORK COUNTY PART 35

RECEIVED: March 24, 2017
March 21, 2017

NYSCEF DOC. NO. 24

PRESENT: HON. CAROL R. EDMEAD J.S.C.

MOTION DATE 12/19/16

MOTION SEQ. NO. 001

The following papers, numbered 1 to ___ , were read on this motion to/for __________

Notice of Motion/Order to Show Cause — Affidavits — Exhibits	No(s).___
Answering Affidavits — Exhibits	No(s). ___
Replying Affidavits	No(s). ___

Upon the foregoing papers, it is ordered that this motion is

In this personal injury action, defendant Hellenic Orthodox Community of St. Eleutherios, Inc. (the "Church") moves pursuant to CPLR 3211(a)(5) to dismiss the complaint of the plaintiff Panagiota Melis ("plaintiff") based on a written waiver agreement signed by plaintiff, and upon notice pursuant to CPLR 3212 for summary dismissal of the complaint.

Plaintiff opposes dismissal and cross moves pursuant to CPLR 3211(b) to strike defendant's fourth and fifth affirmative defenses of waiver and assumption of risk, respectively.

Factual Background

Plaintiff alleges that on February 5, 2015, she slipped and fell on snow and ice in the Church's parking lot after parking her vehicle.

In support of dismissal of the complaint, the Church argues that the clear and unambiguous agreement plaintiff signed as a member of the Church on November 11, 2014 (the "Agreement") included a waiver in which plaintiff released the Church from liability for any incidents occurring thereat. There is no evidence that the Church maliciously or intentionally caused any condition of the parking lot to harm plaintiff, or of any reckless conduct or gross negligence by the Church to find the waiver against public policy. And, General Obligations Law ("GOL") 5-326, which applies to amusement parks and recreational facilities does not apply to void the waiver, since the Church is instead, a place of instruction and training found by courts to be outside the scope of the statute.¹ The Agreement also includes an express assumption of

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risk wherein plaintiff acknowledged that she was solely responsible for anything that happened to her while in the Church's parking lot.

In her cross-motion, plaintiff argues that waiver is unenforceable because it does not expressly state that the Church's own negligence is waived. Also, the waiver only addresses the situation where a claim is made against plaintiff as opposed to any claim made by her. And, to the extent the waiver seeks to relieve the Church of its own negligence, it violates GOL 5-325. Further, the assumption of risk doctrine, which applies to inherently dangerous activities, does not apply to the facts herein and is not a total defense to the Church's own negligence.

In reply and opposition to plaintiff's cross-motion, the Church argues that plaintiff addressed CPLR § 3211(a)(7), and has not addressed CPLR 3211(a)(5), and as such, dismissal under (a)(5) is warranted. The Church also argues that plaintiff signed the Agreement requiring her to make certain monetary contributions to the Church on a regular basis, and in exchange, is afforded many benefits, including the right to park on Church property. Plaintiff's $125 a month payment for parking is another way of referring to her $500 charitable contributions, which were paid every four months and for which plaintiff receives a receipt as a tax deduction. Because plaintiff's contributions are tax deductible as charitable contributions she is not paying for anything, and is not leasing a space from the Church. Plaintiff has never made any payments to the Church as a parking lot or garage for hire. At the time of plaintiff's incident, plaintiff was delinquent and had not paid or contributed anything under the Agreement and such delinquency reaffirms that the Church was not a parking lot for hire. The Church does not have any employees who monitor, grant or restrict access to or from the parking lot or who take keys or have access to plaintiff's vehicle when she parks it. The Church does not take control or possession of plaintiff's car and does not control her access to its parking lot. Thus, in addition to not being a garage for hire, the required bailor-bailee relationship does not exist, and GOL § 5-325 does not apply. The Church argues that there is no case which states that a waiver must use the word "negligence" to be enforceable. And, cases have applied the implied assumption of risk doctrine to non-sporting cases. Thus, defendant's waiver and assumption of risk defenses are valid.

In reply, plaintiff notes that she addressed CPLR 3211(a)(5) by addressing the waiver issue substantively, and her reference to (a)(7) instead of (a)(5) was an error. GOL 5-325 does not create an exception for nonprofit organizations, and the parking lot is "for hire" given that the Church accepts money to permit its members to park there. And, any ambiguities in the Agreement must be construed against the Church as the drafter. The only benefit of the Agreement is parking. And, a bailment is not necessary in order for the statute to void the waiver and for plaintiff to recover for personal injuries. Further, an agreement that is void against public policy and/or the GOL cannot serve as the basis of the express assumption of risk doctrine. And, the implied assumption of risk, which refers to the primary assumption of risk doctrine, likewise does not apply since there is no allegation that plaintiff was engaged in any inherently dangerous activity.

Discussion

As to dismissal pursuant to CPLR 3211(a)(5) based on a written "release," as stated by the Court of Appeals,

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"[U]nless the intention of the parties is expressed in unmistakable language, an exculpatory clause will not be deemed to insulate a party from liability for his own negligent acts (Van Dyke Prods. v. Eastman Kodak Co., 12 N.Y.2d 301, 304, 239 N.Y.S.2d 337, 339, 189 N.E.2d 693, 694, Supra (must be "absolutely clear"); Ciofalo v. Vic Tanney Gyms, 10 N.Y.2d 294, 297, 220 N.Y.S.2d 962, 964, 177 N.E.2d 925, 926, Supra ("sufficiently clear and unequivocal language"); Boll v. Sharp & Dohme, 281 App.Div. 568, 570-571, 121 N.Y.S.2d 20, 21-22, affd. 307 N.Y. 646, 120 N.E.2d 836 ("clear and explicit language")). Put another way, it must appear plainly and precisely that the "limitation of liability

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