Opinion
November 13, 1998
Appeal from Order of Supreme Court, Monroe County, Bergin, J. — Reargument.
Present — Denman, P. J., Hayes, Pigott, Jr., and Fallon, JJ.
Order unanimously reversed on the law with costs, motion for summary judgment denied and complaint reinstated. Memorandum: Plaintiff commenced this action to recover for personal injuries that she sustained in a fall while participating in a "challenge" course owned by defendant. Supreme Court granted defendant's motion for summary judgment dismissing the complaint based on a release signed by plaintiff before she was injured and, upon reargument, adhered to its determination. On appeal, plaintiff contends that the release is unenforceable under General Obligations Law § 5-326 and cannot be construed to bar a claim alleging defendant's negligence.
General Obligations Law § 5-326 does not apply to this case because defendant is not the owner or operator of a "pool, gymnasium, place of amusement or recreation, or similar establishment" (General Obligations Law § 5-326; see, Lago v. Krollage, 78 N.Y.2d 95, 101; Gross v. Sweet, 49 N.Y.2d 102, 107; Tedesco v. Triborough Bridge Tunnel Auth., 250 A.D.2d 758; Chieco v. Paramarketing, Inc., 228 A.D.2d 462, 463; Perelman v. Snowbird Ski Shop, 215 A.D.2d 809, 810). Defendant is a not-for-profit entity that operates a residence for needy adolescents and provides, mental health and other community services; it maintains the "challenge" course for therapeutic purposes as part of its mission to deliver mental health and other support services. Because the statute does not apply to this case, the release is not void thereunder.
We conclude, however, that the release may not be construed to exculpate defendant for its own negligence absent clear and explicit language to that effect ( see, Gross v. Sweet, supra, at 107-110; see also, Lago v. Krollage, supra, at 99-100; Ciofalo v. Tanney Gyms, 10 N.Y.2d 294, 297). The release recites that plaintiff will hold defendant and its agents "harmless from all damages, losses and expenses" "arising out of [plaintiff's] use of the premises, operations, or facilities of [defendant]." Defendant's negligence is not mentioned. Thus, the release may not be construed to bar the claim that plaintiff was injured as a result of defendant's negligence ( see, Bennett v. Genesee Marina, 237 A.D.2d 908, 908-909; Machowski v. Gallant, 234 A.D.2d 933, 934).