Opinion
July 10, 1967
Order of the Supreme Court, Kings County, dated January 18, 1967, granting defendant's motion for summary judgment and denying plaintiff's cross motion to dimiss defendant's first defense and judgment entered thereon, dated March 1, 1967, dismissing plaintiff's complaint, reversed, with one bill of $10 costs and disbursements; motion denied; and plaintiff's cross motion to dismiss defendant's first defense granted. In this action to recover damages for personal injuries, the sole question before us is whether the wording of what purports to be an exculpatory agreement is sufficiently clear and unequivocal to absolve the defendant from liability for its own negligence. In our opinion, said agreement, set forth as defendant's first defense, lacked the requisite clarity to relieve the defendant from liability for its own negligence ( Van Dyke Prods. v. Eastman Kodak Co., 12 N.Y.2d 301; Kaufman v. American Youth Hostels, 5 N.Y.2d 1016; Hertzog v. Harrison Is. Shores, 21 A.D.2d 859). Christ, Acting P.J., Rabin and Nolan, JJ., concur; Brennan and Hopkins, JJ., dissent and vote to affirm the order and judgment appealed from.