Opinion
19332/08.
Decided March 24, 2010.
Mark Thompson, Esq., Pulvers, Pulvers Thompson, LLP, New York, New York, for Plaintiff.
Carol A. Schrager, Esq., New York, New York, for Defendants.
Plaintiff allegedly was injured when he was struck by an unmanned emergency ski patrol rescue sled while, as a member of the United States Ski and Snowboard Association ("USSA"), he was coaching a junior ski team competing in a race at a resort commonly known as "Windham Mountain". (Affidavit in Opposition of Mario Hluch sworn to on January 20, 2010). The complaint alleges that defendant Ski Windham Operating Corp. operated, maintained and controlled and had the care and charge of Windham Mountain's slopes, trails and grounds where plaintiff was injured (¶ 16 of Plaintiff's Verified Complaint). Plaintiff commenced this action on August 4, 2008 to recover damages for his injuries. In its answer, co-defendant Ski Windham Operating Corp. raised the affirmative defense that the action had been brought in an improper forum. This defense was based on a clause in paragraph 5 in a document entitled "United States Ski and Snowboard Association Assumption of Risk and Release of Liability" (hereinafter the "Release"), that the plaintiff signed on October 2, 2007 with the USSA requiring, inter alia, "that all lawsuits for personal injury or related loss against USSA must be maintained in state courts sitting in Summit County, Utah or federal district courts sitting in District of Utah, Central Division and member consents and agrees that jurisdiction and venue for such proceedings shall lie exclusively with such courts."
I. The Release
The Release provides in pertinent part as follows:
I understand that skiing and snowboarding in their various forms, as well as preparation for participation in, coaching, volunteering, officiating and related activities in alpine, nordic, freestyle, disabled, and snowboarding competitions and clinics (hereinafter collectively referred to as "Activities"), involve many RISKS, DANGERS and HAZARDS. These risks, dangers and hazards include, but are not limited to, . . ., natural and man-made obstacles and structures, equipment failure, collisions with objects or structures, being struck by skiers/riders or equipment, and exceeding one's own abilities. . . . . I also know that personal training, coaching, instruction, supervision and enforcement of rules by the United States Ski Snowboard Association, its subsidiaries, affiliates, officers, directors, volunteers, employees, coaches, contractors and representatives, locals ski clubs, competition organizers and sponsers, and ski and snowboard facility operators (hereinafter the term "USSA" shall be used to refer to all such persons and entities collectively) do not and cannot guarantee my safety.
* * *
In consideration of USSA's acceptance of my membership application, and in spite of the risk of severe or permanent injury, or even death, the undersigned (hereinafter "Member") agrees to comply with and be bound by the following terms at all times, whether training or practicing for competition, or in competition.
1. Member hereby unconditionally WAIVES AND RELEASES
ANY AND ALL CLAIMS, AND AGREES TO HOLD HARMLESS, DEFENDAND INDEMNIFY USSA FROM ANY CLAIMS, present or future, to Member of his/her property, or to any other person or property, for any loss, damage, expense, or injury (including DEATH), suffered by any person from or inconnection with Member's participation in any Activities in which USSA is involved in any way, due to any cause whatsoever, INCLUDING NEGLIGENCE and/or breach of express or implied warranty on the part of USSA.
2. Member hereby RELIEVES USSA OF ANY DUTY TO PROTECT
MEMBER FROM HARM in connection with any Activities inwhich USSA is involved in any way. (Emphasis in original).
* * *
5. This Agreement shall be construed in accordance with, and governed by the substantive laws of, the State of Colorado, without reference to principles governing choice or conflicts of laws. In addition, Member agrees that all lawsuits for personal injury or related loss against USSA must be maintained in state courts sitting in Summit County, Utah or federal district courts sitting in the District of Utah, Central Division and Member consents and agrees that jurisdiction and venue for such proceedings shall lie exclusively with such courts. In the event any portionof this release is found to be unenforceable, the remaining terms shall be fully enforceable. (Emphasis added).
The Release specifically states, "HAVING CAREFULLY READ THE FOREGOING AND UNDERSTANDING IT TO BE A LEGALLY BINDING RELEASE AND INDEMNITY AGREEMENT, MEMBER SIGNIFIES HIS ASSENT TO THE ABOVE TERMS BY SIGNING BELOW." (Emphasis in original).
II. Discussion
It is undisputed that on October 2, 2007, plaintiff signed the document which is entitled "UNITED STATES SKI AND SNOWBOARD ASSOCIATION ASSUMPTION OF RISK AND RELEASE OF LIABILITY", and that he was a member of the USSA at the place, time and date of the occurrence alleged in the verified complaint. The Release specifies that one of the "RISKS, DANGERS AND HAZARDS" of participation in a USSA ski race is "being struck by . . . equipment." Plaintiff's personal injury action arises "from or in connection with" plaintiff's "participation" as a USSA Member "in any Activities in which USSA is involved in any way . . ." The Release defined "Activities" to include: "skiing and snowboarding in their various forms, as well as preparation for participation in, coaching, volunteering, officiating and related activities in alpine, nordic, freestyle, disabled, and snowboarding competitions and clinics. . . ."
The Release further defines USSA to include not only the "United States Ski Snowboard Association, its subsidiaries, affiliates, officers, directors, volunteers, employees, [and] coaches", but also expressly extends to outside parties such as defendant in the instant action, a "ski and snowboard facility operator[]". Additionally, the Release explicitly states that "hereinafter the term USSA' shall be used to refer to all such persons and entities collectively. . . ." By the clear and unambiguous language of the Release, as a ski and snowboard facility operator, defendant Ski Windham Operating Corp. is a person or entity covered and incorporated by reference into the definition of the term "USSA" within the terms of the Release.
Significantly, paragraph 5 of the Release has a forum selection clause, which provides that "all lawsuits for personal injury . . . against USSA", "must be maintained in" federal or state courts in Utah, where USSA is incorporated, and that "jurisdiction and venue for such proceedings shall lie exclusively with such courts." Plaintiff's lawsuit for personal injury against defendant as a ski and snowboard facility operator falls squarely within the four corners of the terms of the Release which the forum selection clause was intended to capture.
By the clear terms of the Release, if a member of the USSA who has signed a Release later files a lawsuit for personal injury, in accordance with the terms of the Release, the USSA may argue that action should be dismissed because the member waived the right to sue in any court outside of the State of Utah. Therefore, as a threshold matter, before this court can address plaintiff's substantive claim, this court must initially determine whether the forum selection clause contained in the Release is valid and enforceable. As a general rule the validity of a Release should be evaluated according to ordinary contract law principles. When a contract is straightforward and unambiguous, its interpretation presents a question of law for the court, to be determined without resort to extrinsic evidence ( West, Weir Bartel, Inc. v Mary Carter Paint Co., 25 NY2d 535, 540). Thus, where the application of a contract provision is disputed, the issue is normally resolved by reference to contract itself ( Slamow v Delcol, 79 NY2d 1016, 1018).
"Courts are obliged to interpret a contract so as to give meaning to all of its terms." ( Mionis v Bank Julius Baer Co., 301 AD2d 104 [1st Dept 2002] citing Corhill Corp. v S.D. Plants, Inc., 9 NY2d 595, 599; Trump-Equitable Fifth Ave. Co. v H.R.H. Constr. Corp., 106 AD2d 242, 244, affd 66 NY2d 779). A cardinal rule of contract construction is that "a court should not adopt an interpretation' which will operate to leave a "provision of a contract . . . without force and effect". ( Corhill Corp. v S.D. Plants, Inc., 9 NY2d 595 citing Muzak Corp. v Hotel Taft Corp., 1 NY2d 42, 46; Fleischman v Furgueson, 223 NY 235, 239 [1918]). The reason for such a rule is clear. Since a contract is a voluntary undertaking, it should be interpreted to give effect to the parties' reasonable expectations ( see Sutton v East River Sav. Bank, 55 NY2d 550, 555).
Here the Release must be interpreted so as to give meaning to all of its terms.
Defendant argues that this court should enforce the forum selection clause because defendant as a "ski and snowboard facility operator" is a person or entity covered under the Release, and by definition under the terms of the Release is the "USSA." Therefore, as plaintiff is a member of the USSA and the lawsuit is a personal injury action against the USSA, by the unambiguous terms of the Release all lawsuits for personal injury by a member of the USSA against the USSA "must be maintained in" federal or state courts in Utah and that the "jurisdiction and venue for such proceedings shall lie exclusively with such courts." (See ¶ 5 of the Release).
In opposition, plaintiff argues, inter alia, that defendant has failed to submit any proof in support of the motion, that the Release is void and unenforceable pursuant to General Obligations Law § 5-326; that the Release does not cover the circumstances of plaintiff's accident, and that defendant's motion is premature, as there has been no discovery in this case, pursuant to CPLR 3212(f) the motion must be denied.
It is well settled that "[f]orum selection clauses are prima facie valid. . . . [T]o set aside such a clause, a party must show either that enforcement would be unreasonable and unjust or that the clause is invalid because of fraud or overreaching, such that a trial in the forum set in the contract would be so gravely difficult and inconvenient that the challenging party would, for all practical purposes, be deprived of his or her day in court" ( Hirschman v National Textbook Co., 184 AD2d 494 [2d Dept 1992]; see Bremen v Zapata Off-Shore Co., 407 US 1, 12-18). Absent a showing that it should be set aside, a forum selection clause will control ( see Bremen v Zapata Off-Shore Co., supra at 12, 15). The plaintiff failed to make any showing that the clause was the product of overreaching or was unreasonable, or that its enforcement would be unjust ( see DiRuocco v Flaming Beach Hotel Casino, 163 AD2d 170 [1st Dept 1990]). As the court finds that the forum selection clause in the Release is prima facie valid, and the plaintiff has offered no valid ground for setting the clause aside ( LSPA Enterprise Inc. v Jani-King of New York, Inc., 31 AD3d 394, 395 [2d Dept 2006]), the court determines that the forum selection clause contained in the Release is valid and enforceable.
Plaintiff further contends that defendant has failed to meet its burden of proof on a motion for summary judgment because it has submitted only an attorney affirmation in support. The affirmation of an attorney, even if the attorney has no personal knowledge of the facts may serve as the vehicle for the submission of acceptable attachments which do provide evidentiary proof in admissible form ( Zuckerman v City of New York, 49 NY2d 557, 563). Here in the attorney affirmation in support of the motion, the attorney supports defendant's assertion by citation to documentary evidence, i.e., the Release and the pleadings ( see Lischinskaya v Carnival Corp. , 56 AD3d 116 , 123 [2d Dept 2008] [holding that as a term of the contract between the parties, a contractual forum selection clause is documentary evidence that may provide a proper basis for dismissal pursuant to CPLR 3211(a)(1] . Contrary to the plaintiff's arguments, the defendant's attorney affirmation is sufficient evidence to support defendant's motion for summary judgment ( see Zuckerman, Id. [holding that on a motion for summary judgment an attorney's affirmation may be used to refer to other evidence that is admissible]). Finally, as the court has determined that the claim against defendant Ski Windham Operating Corp. was brought in the improper venue in violation of the forum selection clause in the Release, the court need not reach the remaining arguments raised in plaintiff's opposition.
Accordingly, for all the aforementioned reasons, the motion by defendant Ski Windham Operation Corp. to dismiss the complaint insofar as asserted by plaintiff against it on the ground of a forum selection clause contained in a Release signed by plaintiff is granted.
Plaintiff's cross motion for an order pursuant to CPLR 3211(6) striking the defendant's affirmative defense of Release is denied as moot.