Opinion
May 11, 1987
Appeal from the Supreme Court, Nassau County (Robbins, J.).
Ordered that the order is reversed, on the law, the defendant's cross motion is denied, the plaintiff Miranda's motion is granted, the complaints are reinstated, and the second affirmative defense in action No. 1 is stricken; and it is further,
Ordered that the plaintiffs are awarded one bill of costs.
The release signed by the plaintiff Miranda is void under General Obligations Law § 5-326, since he paid a fee to use the defendant's racing facility and was injured while engaged in the activity for which he paid the fee and signed the release (see, Beardslee v. Blomberg, 70 A.D.2d 732; cf., Meier v. Ma-Do Bars, 106 A.D.2d 143; Wurzer v. Seneca Sport Parachute Club, 66 A.D.2d 1002). In any event, the release at issue here would not bar any claim based on the defendant's negligence, since the release did not explicitly provide that it would encompass such claims (see, Gross v. Sweet, 49 N.Y.2d 102). Mangano, J.P., Niehoff, Weinstein and Kunzeman, JJ., concur.