Opinion
102014/05.
Decided June 9, 2010.
Ephrem J. Wertenteil, Esq., Queller, Fisher, et al, LLP, New York, NY, for plaintiff.
Raymond M. D'Erasmo, Esq., Savona, D'Erasmo Hyer LLC, New York, NY, for New York Triathlon.
Lynn M. Leopold, Esq., Michael A. Cardozo, Corporation Counsel, New York, NY, for defendant City.
Leonard Toker, Esq., Hoey, King, Perez, et al., New York, NY, for defendant Brenner.
The issue addressed here is whether, as a matter of law, a recreational bicyclist, aware that a running and bicycling biathlon is being held somewhere in Central Park, assumes the risk of colliding with a bicycling biathlon participant on a Park lane designated for joint use by both participants and non-participants, and thereby negates the municipal duty to exercise reasonable care against foreseeable dangers and provide an adequate degree of general supervision. Seeking resolution of the issue in their favor, defendants move for an order granting them summary dismissal of the complaint. Defendants City of New York and The New York City of Department of Parks and Recreation (Parks) (collectively, City), in the alternative, move for an order granting them summary judgment on their claim for indemnity against defendants New York Triathlon Club and New York Triathlon Club, Inc. (collectively, New York Triathlon).
I. UNDISPUTED FACTUAL BACKGROUND
On March 28, 2004, plaintiff was injured in Central Park (Park) when defendant Brenner, a bicyclist participating in a biathlon organized by New York Triathlon, collided with him on a Park lane designated by City for joint use by participants and non-participants.
New York Triathlon is a not-for-profit corporation, engaged in the business of organizing multi-sport events. (Affirmation of Lynn M. Leopold, Esq., dated Nov. 30, 2009 [Leopold Aff.], Exh. I at 7, 9). As of March 28, 2004, it had organized the March Madness Biathlon (Biathlon) in Park for 18 consecutive years. ( Id. at 10).
As a general policy, City, as owner and operator of the Park, keeps it open to everyone, even when an event like the Biathlon is scheduled. ( Id., Exhs. M at 34-35, C ¶ 4). However, in weekly meetings with Parks's Events Department, Parks Enforcement Patrol (PEP), and the captain of the Central Park Precinct, Parks's Director of Marketing and Special Events, Katherine Langhammer McQuaid, discusses Park events and determines whether to close any areas to the public, relying on factors specific to the particular event. ( Id., Exh. M at 28). For an event with 500 competitors like the Biathlon, the Park remains open and a Parks employee is assigned to ensure both that the event is confined to its allotted space and that space is available to non-participants. ( Id. at 35, 54-55; Exh. N at 10). A PEP employee monitors heavy congestion points. ( Id., Exh. N at 18-19).
Specific precautions are taken where the event must accommodate a large number of competitors. Marshals, equipped with whistles to alert the general public of the race, are placed to "corral the people into only a few lanes," cones are used, and such events are scheduled for times when the Park is not as busy. ( Id., Exh. M at 36, 77-88). Where participants are confined to certain lanes, however, the public is not precluded from using those lanes, and participants are alerted "that the park is not closed for them and [of] the need to be aware of . . . pedestrians." ( Id. at 35, 55, 89).
Notwithstanding the general policy, Parks is authorized to cancel an event if unsafe. ( Id. at 83-84, Exh. N at 31). Only a handful of the hundreds of events scheduled in the Park, such as the New York City Marathon, requires the closure of a portion of the Park. ( Id., Exh. Mat 93). Emily Brennan Chase, Chief of Citywide Events for Parks, acknowledged the safety concerns inherent in competitive bicycling. ( Id., Exh. K at 62-63). Applications for a permit for an event in the Park are submitted for review to Parks's Manhattan Permit Office, and then to the Citywide Marketing and Special Events office. ( Id., Exhs. I at 11-12, K at 22).
In 2003, New York Triathlon obtained a permit for the 2004 Biathlon from City. ( Id., Exh. Iat 11). It had completed a standard permit request, signed by its president, Daniel Honig, and submitted it to Parks. ( Id., Exh. J). The request reflects that the 2004 Biathlon would, as in previous years, involve 500 participants and 100 spectators; police presence was not requested. ( Id.). Honig also submitted a certificate of insurance and the Competitor's Information and Race Guidelines (Guidelines), the latter of which is provided to participants before the race. ( Id., Exh. I at 14; Affirmation of Ephrem J. Wertenteil, Esq., dated Mar. 1, 2010 [Wertenteil Aff.], Exh. A). The Guidelines warn participants, among other things, that the Park is open to pedestrians, joggers, bicyclists, and skaters, who have the right of way, and that participants who ride in the jogging and recreation lane, which is marked off with a double white line, will be disqualified. (Wertenteil Aff., Exh. A).
On the second page of the permit request is a section entitled "Excerpts from Parks Rules (as codified in Title 56 of the Rules of the City of New York)." Section 2-08(q) provides as follows:
Permittees shall be held liable for any and all damages or injuries to persons or property that may occur or be caused by the use of the permit. By accepting a permit, permittees agree to indemnify and hold harmless the City and the Department from any all claims whatsoever that may result from such use.
(Leopold Aff., Exh. O).
On March 28, 2004, the Biathlon was held along a six-mile loop around the Park, divided three ways: a two-mile running component, followed by a 12-mile bicycle component, and then another two-mile running component. ( Id., Exh. I at 28, 39). Four volunteers were assigned to the entrance and exit of an area, referred to as a transition area, where participants commenced the bicycling portion of the race. ( Id. at 26, 27).
Stationed around the first mile of the loop were 12 to 15 marshals who were responsible for ensuring that participants stayed within the designated lanes, that Park guests were informed of the race, and that the race proceeded safely and in accordance with the Guidelines. ( Id. at 38-41). Approximately 12 marshals stood along the next five miles where more warning signs were posted. ( Id. at 43, 53). Two marshals were stationed in front of the boathouse, the most heavily trafficked area. They told bicyclists to slow down and warned runners that bicyclists would be coming through. ( Id. at 61). Participants were instructed to use the traffic lanes typically reserved for bicycles on weekends. ( Id. at 49). Six signs advised participants to keep left and warned that the Biathlon was in progress. ( Id. at 41-42). Approximately 60 orange cones were placed along the loop. ( Id. at 62).
Honig addressed all participants at a mandatory meeting held immediately before the Biathlon began. He reiterated the Guidelines, explained the race course, and emphasized that pedestrians, bicyclists, and skaters would be using the Park. ( Id. at 65-66). Approximately a quarter of a mile in front of the bicyclists, Honig drove one loop of the Biathlon in a sports utility vehicle equipped with flashing lights and a public announcement system over which he repeatedly announced "bike race in progress, watch your backs, race coming through." ( Id. at 56-60).
Plaintiff was 60 years old at the time of the accident, and an experienced competitive runner who coached his friend Michelle Green in preparation for a running competition to be held the following week in New Jersey. ( Id., Exh. E at 6, 10-12). Although he did not compete in biathlons or bicycle races, he considered himself an experienced bicyclist. ( Id. at 2, 26, 60, 81).
Plaintiff had been to the Park approximately a dozen times ( id. at 78), and had seen announced on the internet that a biathlon would be held that day and that it might involve bicycle racing. ( Id., Exh. G at 22-23). On the day of the accident, he and Green intended to enjoy a relaxing bicycle ride in the Park as a precursor to a running event the following week. ( Id., Exh. E at 12-13, Exh. G at 11). They chose the Park because it was closed to vehicular traffic that day, as it was every weekend. ( Id. at 12-15; Exh. G at 11).
With their bicycles in plaintiff's truck, plaintiff and Green arrived at the East 72nd Street Park entrance at approximately 7:30 that morning. Plaintiff observed barricades that prevented vehicles from entering the Park but no signs or any other written information about the Biathlon. ( Id. at 16, 61). He and Green separated and, after he filled his rear tire with air, plaintiff proceeded to ride his 10-speed racer north, along with other leisure bicycle riders, skateboarders, and rollerbladers. ( Id. at 14, 17, 26).
As she rode, Green observed indicia of the bicycle race. ( Id., Exhs. G at 21, I at 22-23).
After plaintiff completed the loop, he and Green reunited and decided to ride another two loops. (Leopold Aff., Exh. E at 18-19). As they proceeded north, plaintiff saw pedestrians pushing baby carriages, people with walkers, rollerbladers, and joggers, but no bicycle racers. ( Id. at 20-21). Plaintiff also saw a lane of runners and a marshal who appeared to be directing them and the spectators. ( Id. at 33, 63, 77). At some point, the Park was so congested that plaintiff and Green dismounted and continued walking north until the road veered to the left and tilted downhill. ( Id. at 20-22). Then, the crowd having thinned, they got back on their bicycles. ( Id.). Plaintiff saw no bicycle racers. ( Id. at 32).
Between 9 and 9:30 a.m., at a portion of the Park near East 102nd Street, plaintiff and Green approached a curve at moderate speed, and plaintiff felt a push at the rear of his bicycle, at which point defendant Brenner collided with him. ( Id. at 36, Exh. H at 28-29). Immediately before the collision, Green heard from behind a "loud surprised voice, like get out of way kind of," and then saw plaintiff fly off the handlebars, falling face down approximately four or five feet from the bicycle. ( Id., Exhs. G at 19, 23-24). Plaintiff was unconscious and sustained serious physical injuries. ( Id, Exh. E at 36).
Brenner, a participant in the Biathlon, had competed in several biathlons in the Park. ( Id., Exh. H at 7). After running the first portion of the race, he bicycled the first six-mile loop and continued to the second, behind most of the other bicyclists. ( Id. at 10-12). As Brenner approached the northeast section of the Park, his vision was obstructed by foliage and a blind curve, where a portion of the S-shaped curve at the top of a hill ended at the bottom; three Biathlon bicyclists were on all sides but his right. ( Id. at 12, 13, 15, 17, 23). Brenner saw no marshals in this area. ( Id. at 21). As he accelerated downhill and exited the last part of the S-curve, Brenner saw plaintiff's bicycle, but could not avoid hitting it, as there was no room to his right and there was a bicyclist to his immediate left. ( Id. at 17-19, 23-24).
II. PERTINENT PROCEDURAL BACKGROUND
On or about June 4, 2004, plaintiff served a notice of claim on City, alleging, in pertinent part, that City was "negligent in providing a permit for [the Biathlon] with full knowledge that the general public would be utilizing the Central Park East Drive and that the Biathlon consisted of bicyclists competing in a timed race," and "in failing to close the Central Park East Drive . . . failing to allow the [Biathlon] participants to conduct the race on a course without members of the general public utilizing the course; and in creating a dangerous and perilous condition to the public, specifically the claimant, which resulted in the injuries . . . alleged. . . . [and] was negligent, careless and reckless in the ownership, operation, maintenance, use and control of the [Park] on March 28, 2004." (Leopold Aff. Exh. A). On or about February 14, 2005, plaintiff commenced this action, and on or about March 11, 2005, City served its answer with cross-claims against NY Triathlon and Brenner. (Leopold Aff. Exhs. B, C).
III. CITY 'S MOTION FOR SUMMARY JUDGMENT AS AGAINST PLAINTIFF
A. Contentions
City denies liability for plaintiff's injuries absent any duty owed to him, general or special, and denies having done anything that proximately caused plaintiff's injury. Rather, it argues, it was New York Triathlon's duty to organize the event and that, by issuing a permit to New York Triathlon, City merely "furnished the occasion" for the accident, which was proximately caused by Brenner and New York Triathlon. (Leopold Aff.). In support, it relies on Honig's testimony that City did nothing other than issue the permit to New York Triathlon, coordinate dates, and ensure that the race stayed within its allotted space and that the Park remained open to the general public. ( Id., Exh. I). It contends that the issuance of a permit is a governmental function, for which a municipal entity cannot be held liable absent a special duty, and that public entities are generally immune from negligence arising out of the performance of governmental duties. (Leopold Aff.). Moreover, City maintains that plaintiff assumed the risks associated with bicycling in the Park while the Biathlon was in progress and that nothing could have prevented the accident. It offers plaintiff's testimony that he was an experienced bicyclist, that he decided to ride in the Park knowing of the Biathlon, that park users had been alerted to the race, and that the dangers were apparent. ( Id., Exhs. D, I).
In opposition to City's motion, plaintiff acknowledges that City owes him no special duty, but claims that as owner and operator of the Park, it owes a general duty to all of its guests. He maintains that having failed to allege that it furnished adequate supervision and having conceded that New York Triathlon was responsible for the unsafe course, City has not established its entitlement to a dismissal, and otherwise argues that there exist triable issues of fact as to whether City breached its duty. Plaintiff also denies having assumed any risk of a collision in engaging in recreational bicycling in the Park, especially of the risk that he would be injured at a blind spot, and claims that even if he had been aware that Biathlon participants were racing on the same road as he, the obvious nature of the inherently dangerous condition does not relieve City of its duty to supervise the race adequately or segregate the participants from the non-participants. (Wertenteil Aff.).
Triathlon agrees that City has a duty as owner and operator of the Park and takes no position as to whether plaintiff assumed the risk of injury. (Affirmation of Raymond M. D'Erasmo, Esq., dated Mar. 2, 2010 [D'Erasmo Aff.]). At oral argument, Triathlon asked that any dismissal granted City be extended to it, and Brenner joined in plaintiff's opposition to City's motion. (Transcript of oral argument, Apr. 20, 2010).
In reply, City alleges that no additional degree of security could have prevented the accident. (Reply Affirmation of Lynn M. Leopold, dated Mar. 22, 2010).
B. Analysis
1. Standards for summary judgment
The proponent of a motion for summary judgment must establish, prima facie, its entitlement to judgment as a matter of law, and must provide sufficient evidence demonstrating the absence of triable and material factual issues. ( Alvarez v Prospect Hosp., 68 NY2d 320; Winegrad v NY Univ. Med. Ctr., 64 NY2d 851; Walden Woods Homeowners Assn. v Friedman , 36 AD3d 691 [2d Dept 2007]). Failure to do so requires that the motion be denied regardless of the sufficiency of the opposing papers. ( Id.). The burden of proof then shifts to the opposing party to produce admissible evidence demonstrating the existence of triable and material issues of fact on which its claim rests. ( Zuckerman v New York, 49 NY2d 557). A defendant moving for summary judgment must submit evidence which negates, prima facie, an essential element of the plaintiff's cause of action. ( Rosabella v Metro. Trans. Auth., 23 AD3d 365, 366 [2d Dept 2005]).
2. Municipal liability for negligence
Before liability for negligence may be imposed, the plaintiff must demonstrate: (1) that defendant owed a duty to plaintiff; (2) that the defendant breached the duty; and (3) that the plaintiff was injured as a result of the breach. ( Akins v Glens Falls City School Dist., 53 NY2d 325, 333).
A municipality is generally cloaked with common-law tort immunity for the acts of its employees which involve the exercise of reasonable discretion. ( Lauer v City of New York, 95 NY2d 95, 99). By contrast, if the employee's acts are ministerial, eg, where the employee acts pursuant to a governing rule with a compulsory result, there is no tort immunity and the municipality may be subject to liability for negligence. ( Id.). Even if a ministerial breach is established, however, the existence of a special duty, a duty beyond that owed to the general public, must also be established. ( Id. at 100). As plaintiff concedes the absence of a special duty owed him by City, I need not address whether City may be held liable for plaintiff's injuries solely by virtue of having issued the permit to New York Triathlon.
A municipality may also owe a general duty in its capacity as owner and operator of property open to the public (15 NY Prac, New York Law of Torts § 17:63 [2010] [operation of public park is private corporate activity voluntarily engaged in by government]; Schrempf v State of New York, 66 NY2d 289, 294; Miller v State of New York, 62 NY2d 506, 511-512), and specifically of a public park ( Solomon by Solomon v City of New York, 66 NY2d 1026, 1027; Caldwell v Village of Island Park, 304 NY 268, 273 [1952]), and is not immune from liability for a breach of that duty ( Vestal v County of Suffolk , 7 AD3d 613 , 614 [2d Dept 2004]; Rotz v City of New York, 143 AD2d 301, 304 [1st Dept 1988]).
Municipal liability may lie even if the plaintiff's injuries are attributable to the acts of third persons, so long as those acts were foreseeable. ( Rotz, 143 AD2d at 306). The scope of the duty is thus defined by "past experience and the likelihood of conduct on the part of third persons . . . which is likely to endanger the safety of the visitor." ( Maheshwari v City of New York , 2 NY3d 288 , 294).
In Rotz, the plaintiff was trampled by a stampeding crowd at a concert in Central Park. The First Department reversed the trial court's summary dismissal of the complaint, finding that under the circumstances presented, a jury could reasonably find that a risk of harm was foreseeable, which risk the City apparently foresaw when it required the concert promoter to indemnify it. The court thus held that there existed factual issues as to whether the City and the concert promoter had fulfilled their duty "to provide an adequate degree of general supervision of the crowd invited by exercising reasonable care against foreseeable dangers under the circumstances prevailing" and "an adequate degree of general supervision of such activities as would endanger others utilizing the park," noting that the degree of supervision required "necessarily depends upon the peculiar attendant circumstances." ( Rotz, 143 AD2d at 304-305).
By contrast, in Maheshwari, the Court of Appeals upheld the summary dismissal of an action for injuries sustained by the plaintiff as a result of a criminal assault at a rap and heavy metal concert held at a City park, affirming the findings below that the assault was not foreseeable, that the defendants took reasonable measures to deal with issues of "crowd control and other forms of disorderliness short of unprovoked criminal acts," and that the random criminal attack was not a "predictable result of the gathering of a large group of people." ( Id. at 294). It distinguished Rotz as pertaining to crowd control. ( Id. at 295).
In a case more closely analogous here, the plaintiff was jogging when he was hit by a racing bicyclist. The Southern District of New York denied the municipal defendant's motion to dismiss the bicyclist's third-party claim against it, and like the court in Rotz, held that "the municipality which extends to its citizens an invitation to enter and use recreational areas owes to those accepting that invitation a duty of reasonable and ordinary care against foreseeable dangers [and that w]hat degree of care is reasonable necessarily depends upon the attendant circum-stances and is a jury question." ( Fenwick v Thayer, 1984 WL 1212, *3 [SD NY 1984]). Here, City's proactive role in formulating and executing safety precautions and designating employees from Parks and PEP to oversee the race evidences that duty.
Given City's duty to exercise reasonable care against foreseeable danger, I also find that permitting racing bicyclists to share a lane with recreational bicyclists provides abundant opportunities for collisions ( see O'Connor v State of New York, 70 NY2d 914, 915 [bicycle time trials on roadways of State-owned vast office complex constituted "unusual hazard or dangerous activity"]), and thus, the risk of harm was foreseeable. As in Rotz, City foresaw the risk when it required that New York Triathlon indemnify it.
City's successful employment of safety precautions over 17 years, while a factor to be considered, does not warrant a finding, as a matter of law, that City complied with its duty to exercise reasonable and ordinary care against the foreseeable risk of a collision between a participating and non-participating bicyclist. Rather, factual issues are presented as to whether it exercised the requisite amount of care which necessarily depends upon the attendant circumstances and is a jury question. In contrast to the circumstances presented in Maheshwari, there was no intervening criminal conduct here, and the management of a Biathlon held among non-participating Park users poses issues relating to crowd control. As Brenner's collision with plaintiff was foreseeable, the factual issue for the jury is whether City exercised reasonable and ordinary care.
Although New York Triathlon agreed to indemnify City and hold it harmless ( see infra, IV.), City is not thereby relieved from the duty it owed plaintiff, whom it invited to bicycle in the same lane as the Biathlon racers, to protect against the foreseeable risk of collision. (See Rotz, 143 AD2d at 304).
3. Assumption of risk
A municipality's duty, however, is "to make the conditions as safe as they appear to be." ( Morgan v State of New York, 90 NY2d 471, 484). In Murphy v Steeplechase Amusement Co., the Court of Appeals, in reversing a verdict in favor of the plaintiff, who was injured after falling on an amusement park contraption aptly called "The Flopper," held, through Chief Judge Cardozo, that:
One who takes part in such a sport accepts the dangers that inhere in it so far as they are obvious and necessary, just as a fencer accepts the risk of a thrust by his antagonist or a spectator at a ball game the chance of contact with the ball.
( 250 NY 479, 482-483 [1929]; Morgan, 90 NY2d at 482-484; see Turcotte v Fell, 68 NY2d 432, 438-439).
Recently, and almost a century later, Chief Judge Lippman reiterated and explained that those who participate in athletic and recreational activities voluntarily assume "significantly heightened risks" and thereby negate a defendant's liability in order to preserve the "beneficial pursuits as against the prohibitive liability to which they would otherwise give rise." ( Trupia v Lake George Central School , 14 NY3d 392 ). The Chief Judge also observed that notwithstanding the legislative mandate set forth in CPLR 1411 that an assumption of risk no longer negate tort liability but rather mitigate it via the application of comparative negligence principles, in practice, tort recovery is regularly barred where the plaintiff has assumed the risk of injury. ( Id. at 392; Alexander, Practice Commentaries, McKinney's Consol Law of NY, Book 7B, CPLR 1411, C1411:2 [express and primary assumption of risk bar recovery]; Morgan, 90 NY2d at 485 [when risk is assumed, there is, in effect, no duty, no negligence, and therefore, no cause of action]; cf Turcotte, 68 NY2d at 437-438 [in measuring defendant's duty to plaintiff, it is "necessary, and quite proper" to consider risks assumed]; see Poricanin, Effects of Trupia' in Applying Assumption of Risk Doctrine, NYLJ, June 3, 2010, at 4, col 1 [observing that Court in Trupia departed from Turcotte to extent Turcotte Court held that assumption of risk theoretically coexists with principles of comparative negligence]).
Whether recovery is barred or reduced, a plaintiff engaged in athletic and recreational activity is deemed to have assumed only "fully comprehended or perfectly obvious" risks, those "dangers inherent in the sport." ( Morgan, 90 NY2d at 483). On the other hand, a risk is not assumed where it is unique and constitutes a dangerous condition "over and above the usual dangers that are inherent in the sport" ( Id. at 485; cf O'Connor, 70 NY2d at 915 [bicycle time trials on roadways of State-owned vast office complex constituted "unusual hazard or dangerous activity," for which State was properly found liable for taking no measures to protect pedestrians]), or where the defendant's conduct unreasonably increases the risk ( Cotty v Town of Southampton , 64 AD3d 251 , 254 [2d Dept 2009]).
Although it cannot be disputed that an experienced bicyclist like plaintiff would be aware of the risk of a collision with another bicycle in the Park's bicycle lane ( see Morgan, 90 NY2d at 486; Zielinski v Farace, 291 AD2d 910 [4th Dept 2002] [risk of injury inherent in downhill skiing]; compare Marcano v City of New York, 296 AD2d 43, 47 [1st Dept 2002] [plaintiff had no prior familiarity with apparatus and thus could not appreciate risks posed], with Simoneau, 248 AD2d 865, 866-867 [having skied for 20 years and having ridden chair lift several times that day indicates that claimant not unaware of need to pay close attention when boarding lift]), the issue here is whether plaintiff also assumed the risk of colliding with a bicyclist participating in a race in the lane ordinarily reserved on weekends for recreational bicyclists and shared by them that day.
Having established, at the least, that Biathlon bicyclists were racing around the loop where plaintiff was riding, that marshals were stationed along parts of the loop, and that plaintiff had completed a loop before the accident, City has satisfied its initial burden of establishing, prima facie, that the risk of collision with a racing bicyclist was obvious to plaintiff. The burden thus shifts to plaintiff who denies, whether credibly or not, knowing that the race was being conducted in the lane in which he rode, and who alleges, without dispute, that no marshals were stationed at or near the site of the accident. Plaintiff has thereby raised an issue of fact as to whether he fully comprehended the risk of collision with a racing bicyclist, whether the risk was perfectly obvious, and whether defendants, by permitting Biathlon bicyclists to race in the same lane used by non-participants, unreasonably increased the risk inherent in recreational bicycle riding.
That the Biathlon was held for 17 years without incident does not prove, as a matter of law, that the risk was not over and above the usual dangers inherent in the sport of recreational bicycle riding or that defendants did not unreasonably increase the risk, and does not warrant a finding, as a matter of law, that under the circumstances presented, plaintiff assumed the risk of being hit by a racing Biathlon bicyclist. Rather, given the evidence that plaintiff may have become aware that bicyclists were racing in his lane, factual issues are presented as to whether he indeed assumed the risk of colliding with one of them.
However, absent any evidence that the road was not otherwise as safe as it appeared to be, any issue as to whether the blind spot added to the risk allegedly assumed by plaintiff is resolved, as a matter of law, against him.
4. Proximate cause
To the extent City seeks to attribute plaintiff's injuries solely to the actions or inactions of co-defendants, questions of relative causation are for the jury. ( See Rotz, 143 AD2d 301, 304 [issues of negligence, foreseeability and proximate cause involve kinds of judgmental variables which have traditionally, and soundly, been left to finders of fact to resolve even where facts are essentially undisputed]). Moreover, even if co-defendants' negligence is presumed, the intervening acts of third parties negate City's liability only if shown to be "extraordinary under the circumstances, not foreseeable in the normal course of events, or independent of or far removed from the defendant's conduct." ( Derdiarian v Felix Contracting Corp., 51 NY2d 308, 315; Gross v New York City Trans. Auth., 256 AD2d 128 [1st Dept 1998]).
No such inferences may be drawn here ( see, supra, III.B.2.) and, having acknowledged the safety concerns inherent in competitive bicycling, City cannot seriously argue that a collision between a bicyclist participating in a race and a non-participating bicyclist using the same Park lane is extraordinary or unforeseeable. ( Cf O'Connor, 70 NY2d at 915 [danger of bicyclist striking a bicyclist was foreseeable]; see Rotz, 143 AD2d at 304 ["Our point of departure with the IAS Court is its summary determination that the danger here was not foreseeable and that, as a matter of law, the injuries to plaintiff were caused by an unforeseeable, intervening event."]).
IV. CITY'S MOTION FOR SUMMARY JUDGMENT AGAINST NEW YORK TRIATHLON A. Contentions
City contends that because New York Triathlon expressly agreed to indemnify it for damages arising out of the Biathlon, New York Triathlon should be ordered to indemnify it. (Leopold Aff.). New York Triathlon acknowledges that it agreed to indemnify City, but maintains that City is not entitled to summary judgment given the issue of fact as to its negligence. (D'Erasmo Aff.).
B. Analysis
A clause purporting to indemnify a party for its own negligence, while enforceable, is strictly construed to ensure that the parties "unmistakably" intended it. (23 NY Jur 2d, Contribution, Etc. § 76 [2010]; Gross v Sweet, 49 NY2d 102, 107; Talapin v One Madison Ave. Condominium , 63 AD3d 909 , 911 [2d Dept 2009]; Ash v New York Univ. Dental Ctr., 164 AD2d 366, 368 [1st Dept 1990]). "When the intent is clear, an indemnification agreement will be enforced even if it provides indemnity for one's own or a third party's negligence." ( Bradley v Earl B. Feiden, Inc. , 8 NY3d 265 , 274). And where the clause indemnifies against "any and all claims . . ." arising in connection with a contract, a claim of negligence is included among the claims against which the party is indemnified ( Levine v Shell Oil Co., 28 NY2d 205, 210), if "negotiated by sophisticated parties as an allocation of risk" ( Bradley, 8 NY3d at 274; Gross, 49 NY2d 102; Randall v Bd. of Higher Educ. in the City of New York, 78 AD2d 516 [1st Dept 1980]).
As New York Triathlon does not dispute that it is contractually required to indemnify City and hold it harmless for "any all claims whatsoever that may result from such use," it has a duty to indemnify City notwithstanding City's possible negligence.
V. CONCLUSION
In sum, as "[i]ssues of negligence, foreseeability and proximate cause involve the kinds of judgmental variables which have traditionally, and soundly, been left to the finders of fact to resolve even where the facts are essentially undisputed" ( Rotz, 143 AD2d at 304), it is
ORDERED, that defendant City of New York's motion, as joined in by defendants Robert Brenner, New York Triathlon Club and New York Triathlon Club, Inc., for an order granting them summary judgment as against plaintiff is denied; and it is further
ORDERED, that defendant City of New York's motion for an order granting it summary judgment as against New York Triathlon is granted to the extent that New York Triathlon Club and New York Triathlon Club, Inc. are ordered to indemnify it for any liability ultimately imposed.
This constitutes the decision and order of the court.