Rivera v. Pocono Whitewaters Adventures

• Decision Date: 17 July 1997
• Citation: 241 A.D.2d 381,660 N.Y.S.2d 723
• Parties: Jose A. RIVERA, Plaintiff-Respondent-Appellant, v. POCONO WHITEWATERS ADVENTURES, etc., Defendant-Appellant-Respondent.
• Court: New York Supreme Court — Appellate Division

Page 723

660 N.Y.S.2d 723

241 A.D.2d 381

Jose A. RIVERA, Plaintiff-Respondent-Appellant, v. POCONO WHITEWATERS ADVENTURES, etc., Defendant-Appellant-Respondent.

Supreme Court, Appellate Division,

First Department.

July 17, 1997.

Carol R. Finocchio, for Plaintiff-Respondent-Appellant.

Elizabeth Gelfand Kastner, for Defendant-Appellant-Respondent.

Before WALLACH, J.P., and NARDELLI, RUBIN and WILLIAMS, JJ.

MEMORANDUM DECISION.

Order, Supreme Court, Bronx County (Barry Salman, J.), entered July 10, 1996, which, inter alia, denied defendant's motion for summary judgment dismissing the complaint, and held that Pennsylvania law applies to the action, unanimously modified, on the law, to the extent of finding that New York law applies, and otherwise affirmed, without costs or disbursements.

In resolving conflict-of-law questions, courts must apply "the law of the jurisdiction which, because of its relationship or contact with the occurrence or the parties, has the greatest concern with the specific issue raised in the litigation" (Babcock v. Jackson, 12 N.Y.2d 473, 481, 240 N.Y.S.2d 743, 191 N.E.2d 279; see, Neumeier v. Kuehner, 31 N.Y.2d 121, 128, 335 N.Y.S.2d 64, 286 N.E.2d 454). New York has an "important interest in protecting its own residents injured in a foreign State against unfair or anachronistic statutes of that State" (Schultz v. Boy Scouts 65 N.Y.2d 189, 199, 491 N.Y.S.2d 90, 480 N.E.2d 679; see also, Rakaric v. Croation Cultural Club, 76 A.D.2d 619, 430 N.Y.S.2d 829, appeal dismissed 52 N.Y.2d 1072; Scharfman v. National Jewish Hosp. and Research Center, 122 A.D.2d 939, 506 N.Y.S.2d 90). New York has a longstanding policy of disfavoring exculpatory contracts (see, General Obligations Law § 5-326; Stone v. Bridgehampton Race Circuit, 217 A.D.2d 541, 542, 629 N.Y.S.2d 80, lv. denied 87 N.Y.2d 809, 642 N.Y.S.2d 195, 664 N.E.2d 1258). Accordingly, because of this State's interest in protecting its domiciliary, and because of defendant's solicitation of business in this State, New York law is applicable.

However, the IAS court properly found that questions of fact exist with respect to the validity of the waiver form executed by plaintiff. It also properly dismissed the second affirmative defense of assumption of the risk. Defendant did not oppose this branch of plaintiff's cross-motion in the IAS court, and defendant's arguments should not be considered for the first time on appeal (City of New York v. Stack, 178 A.D.2d 355, 577 N.Y.S.2d...