Opinion
April 5, 1985
Appeal from the Supreme Court, Genesee County, Kramer, J.
Present — Dillon, P.J., Boomer, Green, O'Donnell and Schnepp, JJ.
Order unanimously modified, on the law, to grant plaintiffs' motions to strike defendant's defense and, as modified, affirmed, with costs to plaintiffs. Memorandum: Plaintiffs commenced separate negligence actions to recover for injuries sustained while viewing an automobile race from the pit area of the Lancaster Speedway. In order to enter the pit area, plaintiffs paid an additional admittance fee and signed a release form. The form stated, in part, that the signatory recognized the inherent risks in entering the area and released the management from "all claims and liability arising out of strict liability or ordinary negligence". Plaintiffs contend that their injuries were caused by defendant's negligence when debris from a vehicle entered the pit area through an open gate and struck them. Special Term properly denied defendant's cross motion for summary judgment because triable issues of fact were raised ( Zuckerman v. City of New York, 49 N.Y.2d 557; Muller v. Sturman, 79 A.D.2d 482, 487). We find that the court erred, however, in denying plaintiffs' motion to strike defendant's affirmative defense of general release. General Obligations Law § 5-326 states: "Every * * * agreement * * * in or in connection with, or collateral to, any * * * ticket of admission * * * entered into between the owner or operator of any * * * place of amusement or recreation, or similar establishment and the user of such facilities, pursuant to which such owner or operator receives a fee * * * which exempts the said owner or operator from liability for damages caused by or resulting from the negligence of the owner [or] operator * * * shall be deemed to be void as against public policy and wholly unenforceable". As spectators to the race, plaintiffs were clearly "users" of the facility under the statute ( see, Beardslee v. Blomberg, 70 A.D.2d 732; Wurzer v. Seneca Sport Parachute Club, 66 A.D.2d 1002). Moreover, the release form was signed "in connection with" the additional admission fee plaintiffs paid to enter the pit area ( cf. Beardslee v. Blomberg, supra; Geise v. County of Niagara, 117 Misc.2d 470).