Summary
holding that the "Supreme Court erred in granting defendants' summary judgment motion and dismissing plaintiff's claims" where "[t]he release that decedent signed . . . and upon which Supreme Court relied is ambiguous and does not express in unmistakable language the intention of the parties"
Summary of this case from Golden Pacific Bancorp v. F.D.I.COpinion
November 15, 1989
Appeal from the Supreme Court, Erie County, Rath, J.
Present — Dillon, P.J., Denman, Boomer, Green and Davis, JJ.
Order unanimously modified on the law and as modified affirmed without costs, in accordance with the following memorandum: Supreme Court erred in granting defendants' summary judgment motion and dismissing plaintiff's claims arising out of decedent's death while engaged in scuba-diving activity under defendants' direction. The release that decedent signed as a precondition for his enrollment in the scuba-diving course and upon which Supreme Court relied is ambiguous and does not express in unmistakable language the intention of the parties (see, Gross v Sweet, 49 N.Y.2d 102, 107-110; Abramowitz v New York Univ. Dental Center, 110 A.D.2d 343). Moreover, pretrial deposition testimony reveals that there are questions whether decedent was fully advised of the potential dangers of engaging in the activity. Supreme Court properly denied defendants summary judgment on claims arising out of the sale of scuba-diving equipment.