BROOKNER v. NEW YORK ROADRUNNERS CLUB INC (2008)

In an action to recover damages for personal injuries, the plaintiff appeals (1) from an order of the Supreme Court, Kings County (Ambrosio, J.), dated December 18, 2006, which, in effect, granted that branch of the defendants' motion pursuant to CPLR 3211(a)(5) which was to dismiss the complaint insofar as asserted against the defendant New York Roadrunners Club, Inc., and (2), as limited by his brief, from so much of an order of the same court dated February 8, 2007, as, in effect, granted that branch of the defendants' motion pursuant to CPLR 3211(a)(5) which was to dismiss the complaint insofar as asserted against the defendant City of New York.

ORDERED that the order dated December 18, 2006, is affirmed;  and it is further,

ORDERED that the order dated February 8, 2007, is affirmed insofar as appealed from;  and it is further,

ORDERED that one bill of costs is awarded to the defendants.

 The plaintiff commenced this action to recover damages after he allegedly sustained injuries while participating in the 2004 ING Marathon in New York City. Prior to the event, the plaintiff signed a waiver and release, which unambiguously stated his intent to release the defendants from any liability arising from ordinary negligence (see Bufano v. National Inline Roller Hockey Assn., 272 A.D.2d 359, 359-360, 707 N.Y.S.2d 223;  cf. Gross v. Sweet, 49 N.Y.2d 102, 109-110, 424 N.Y.S.2d 365, 400 N.E.2d 306;  Doe v. Archbishop Stepinac High School, 286 A.D.2d 478, 479, 729 N.Y.S.2d 538).   In light of this waiver and release, the Supreme Court properly granted those branches of the defendants' motion which were to dismiss the complaint pursuant to CPLR 3211(a)(5) insofar as asserted against the defendants New York Road Runners Club, Inc. (hereinafter NYRRC) and City of New York (see Fazzinga v. Westchester Track Club, 48 A.D.3d 410, 851 N.Y.S.2d 278;  see also Booth v. 3669 Delaware, 92 N.Y.2d 934, 680 N.Y.S.2d 899, 703 N.E.2d 757;  Lee v. Boro Realty, LLC, 39 A.D.3d 715, 716, 832 N.Y.S.2d 453;  Koster v. Ketchum Communications, 204 A.D.2d 280, 611 N.Y.S.2d 298).

 Contrary to the plaintiff's contentions, General Obligations Law § 5-326 does not invalidate the release, since the entry fee the plaintiff paid to the NYRRC was for his participation in the marathon, and was not an admission fee allowing him to use the City-owned public roadway over which the marathon was run (see Stuhlweissenburg v. Town of Orangetown, 223 A.D.2d 633, 634, 636 N.Y.S.2d 853).   Further, the public roadway in Brooklyn where the plaintiff alleges he was injured is not a “place of amusement or recreation” (Tedesco v. Triborough Bridge & Tunnel Auth., 250 A.D.2d 758, 673 N.Y.S.2d 181;  see Fazzinga v. Westchester Track Club, 48 A.D.3d 410, 851 N.Y.S.2d 278).

The plaintiff's remaining contentions are without merit.