Opinion
March 6, 1978
In an action to recover damages based upon theories of negligence and breach of contract, plaintiff appeals from an order of the Supreme Court, Orange County, entered September 20, 1977, which granted defendant's motion for summary judgment. Order modified by adding thereto, after the provision that defendant's motion is granted, the following: "except as to so much of the first cause of action as seeks damages for the loss of plaintiff's foal, and as to such part of that cause of action, the motion is denied". As so modified, order affirmed, with $50 costs and disbursements payable to appellant. The waiver of liability contained in the breeding agreement between the parties is insufficient to cover the loss of the foal. It refers only to plaintiff's mare. The rule is clear that before the courts will sustain the validity of a prior release of negligence there must be "a clear understanding between the parties, which plainly and precisely defines the limitation of liability the party attempting to avoid responsibility seeks to obtain" (Phibbs v Ray's Chevrolet Corp., 45 A.D.2d 897, 898; see, also, Van Dyke Prods. v Eastman Kodak Co., 12 N.Y.2d 301). Appellant's remaining point is without merit. Latham, J.P., Cohalan, Margett and O'Connor, JJ., concur.