Opinion
16-0527
09-05-2018
Calley RINGWALL, Plaintiff, v. STATELINE ENTERPRISES INC. d/b/a Bull and Barrel Brew Pub, Defendant.
Appearances, Robert Becher, Esq., Counsel for Plaintiff, 733 Broadway, Suite 2, Albany, New York 12207 Joseph A. Charbonneau, Esq., Counsel for Defendant, movant, 3 Starr Ridge Road, Suite 203, Brewster, New York 10509
Appearances, Robert Becher, Esq., Counsel for Plaintiff, 733 Broadway, Suite 2, Albany, New York 12207
Joseph A. Charbonneau, Esq., Counsel for Defendant, movant, 3 Starr Ridge Road, Suite 203, Brewster, New York 10509
Lisa M. Fisher, J.
This is a personal injury action arising from hand injuries sustained by Plaintiff on January 29, 2016 while she was riding a mechanical bull on Defendant's premises. Now, Defendant moves for summary judgment on the sole grounds that Plaintiff executed a written "Participation Agreement" (hereinafter "Agreement") which contained a release of liability and waiver of claims by Plaintiff against Defendant, therefore the instant action cannot be maintained and must be dismissed. Defendant specifically claims that General Obligations Law § 5-326 does not invalidate this Agreement as Defendant did not collect a fee riding the mechanical bull.
Plaintiff opposes the application, arguing that she and another witness were charged a fee to ride the mechanical bull and therefore General Obligations Law § 5-326 renders the Agreement void as against public policy. Plaintiff also argues that, in case the Court decides to search the record on the application of assumption of risk, there is also a question of fact raised by Plaintiff's expert engineer as to whether Defendant's created or unnecessarily enhanced the risk of Plaintiff's hand injury by improperly replacing the holding rope on the back of the mechanical bull. Plaintiff's expert argues that the length of the rope replaced by Defendant is too long per the mechanical bull manufacturer's recommendations. Defendant submits a reply.
Defendant's application is somewhat unorthodox as it moves under CPLR R. 3211 and CPLR R. 3212, of which application under R. 3211 is untimely as this juncture, and the application also fails to asset an argument as to the assumption of risk doctrine notwithstanding same being asserted in the Answer. Despite Plaintiff's concern, this Court declines to search the record regarding assumption of risk.
The gravamen of this application is whether General Obligations Law § 5-326 applies to bar this action. This section governs agreements exempting pools, gymnasiums, places of public amusement or recreation and similar establishments from liability for negligence void and unenforceable, and provides the following:
Every covenant, agreement or understanding in or in connection with, or collateral to, any contract, membership application, ticket of admission or similar writing, entered into between the owner or operator of any pool, gymnasium, place of amusement or recreation, or similar establishment and the user of such facilities, pursuant to which such owner or operator receives a fee or other compensation for the use of such facilities, which exempts the said owner or operator from liability for damages caused by or resulting from the negligence of the owner, operator or person in charge of such establishment, or their agents, servants or employees, shall be deemed to be void as against public policy and wholly unenforceable.
To establish a prima facie entitlement to judgment as a matter of law, a moving party must present proof in admissible form to demonstrate the absence of any triable issues of fact as to each and every allegation in the complaint and bill of particulars. (See Winegrad v. New York Univ. Med. Ctr. , 64 NY2d 851 [1985] ; Zuckerman v. City of New York , 49 NY2d 557 [1980] ; accord Hollis v. Charlew Const. Co., Inc. , 302 AD2d 700 [3d Dept 2003] ; Balnys v. Town of New Baltimore , 160 AD2d 1136, 1136 [3d Dept 1990] [noting the movant must come "forward with competent proof refusing the allegations of the complaint as amplified by the bill of particulars."].) Here, Defendant establishes that GOL § 5-326 does not invalidate the Agreement because Defendant did not charge a fee to ride the mechanical bull. Defendant establishes this through the testimony of its representatives that a posted sign displayed the "Mechanical Bull Rules" and specifically notes "[t]here is no fee to ride mechanical bull but a $2 tip to the operator is greatly appreciated." Since the Agreement provides a waiver of claims and release of liability, which Plaintiff freely entered into, the Court is satisfied Defendant is entitled to summary judgment.
Once the movant has made such a showing, the burden shifts to the nonmoving party to produce evidentiary proof in admissible form sufficient to require a trial of material questions of fact. (See Zuckerman , 49 NY2d at 562 ["mere conclusions, expressions of hope or unsubstantiated allegations or asserts are insufficient."].) Here, Plaintiff raises a question of fact and credibility warranting preclusion of summary judgment. This is particularly established by the affidavits of Plaintiff and Michael Moorehouse, whom both aver that Defendant's employee or agent operating the mechanical bull had them sign a release and advise them it cost "two dollars to ride the bull." Neither Plaintiff nor Mr. Moorehouse saw the mechanical bull rules sign stating the $2 was a tip, as it was in the area of the general store and not the bull riding area where they were. Both witnesses were under the strong impression the $2 was a fee, not a suggested tip.
The Court finds Meier v. Ma-Do Bars, Inc. (106 AD2d 143 [3d Dept 1985] ) particularly instructive. In Meier , an appeal originating directly from this Greene County Supreme Court (Cholakis, J.) where this matter is venued, the plaintiff sustained personal injuries while attempting to ride a mechanical bull in a western/rodeo style bar. The mechanical bull operator advised the plaintiff he could ride the mechanical bull upon payment of $2 and execution of a liability release. The Appellate Division, Third Department, found that the defendant "created a place of amusement or recreation by the installation of the [mechanical bull]," and given the uncontested fact that the defendant charged the plaintiff to ride the mechanical bull, GOL § 5-326 rendered the liability release null and void. Here, the gravamen of the dispute is whether there was a charge for riding the mechanical bull. While Defendant claims that the posted sign makes it clear that there was no fee only an "appreciated" tip, both Plaintiff and Mr. Moorehouse contend otherwise. This is an issue of credibility and, since the Court's role on summary judgment is not issue determination but rather issue identification, summary judgment must be denied. (See Sillman v. Twentieth Century-Fox Film Corp. , 3 NY2d 395, 404 [1957] ["This drastic remedy should not be granted where this is any doubt as to the existence of such issues, issue-finding rather than issue-determination, is the key to the procedure."] [citations and quotations omitted].)
To the extent not specifically addressed above, the parties' remaining contentions have been examined and found to be lacking in merit or rendered academic.
Thereby, it is hereby
ORDERED that Defendant's motion is DENIED , and all other relief requested therein is denied in its entirety.
This constitutes the Decision and Order of the Court denying Defendant's motion for summary judgment in Ringwall v. Stateline Enterprises Inc. (Index No.: 16-0527). Please note that a copy of this Decision and Order along with the original motion papers are being filed by Chambers with the County Clerk. The original Decision and Order is being returned to the prevailing party, to comply with CPLR R. 2220. Counsel is not relieved from the applicable provisions of this Rule with regard to filing, entry and Notice of Entry.
IT IS SO ORDERED.
Papers Considered:
1) Notice of motion, dated June 24, 2018; attorney's affirmation of Joseph A. Charbonneau, Esq., with annexed exhibits, dated June 27, 2018; memorandum of law, dated June 24, 2018; affidavit in support of motion, of Rick Cipriani, with annexed exhibits, dated June 22, 2018;
2) Affirmation in opposition, of Robert A. Becher, Esq., dated July 2, 2018; affidavit of Michael Moorehouse, dated July 3, 2018; affidavit of Calley Ringwall, dated July 3, 2018; affidavit of Alden P. Gaudreau, with annexed exhibits, dated July 2, 2018; Plaintiff's memorandum of law in opposition to motion for summary judgment, undated; and
3) Attorney's affirmation, of Joseph A. Charbonneau, Esq., dated July 16, 2018; affidavit in support of motion, of Rick Cipriani, with annexed exhibits, dated July 16, 2018.