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Supreme Court, Appellate Division, First Department, New York.

Lisa NUTLEY, Plaintiff-Respondent, v. SKYDIVE THE RANCH, Defendant-Appellant.

Decided: August 11, 2009

TOM, J.P., FRIEDMAN, CATTERSON, MOSKOWITZ, RICHTER, JJ. The Law Offices of David M. Schreier, New York (Steven E. Kurtz of counsel), for appellant. McMahon, Martine & Gallagher, LLP Brooklyn (Patrick W. Brody of counsel), for respondent.

Order, Supreme Court, New York County (Martin Shulman, J.), entered January 28, 2009, which denied defendant's motion for summary judgment dismissing the complaint and for a default judgment on its counterclaim for attorney's fees and costs, unanimously modified, on the law, the motion granted to the extent of awarding defendant summary judgment, the complaint dismissed, and otherwise affirmed, without costs.   The Clerk is directed to enter judgment accordingly.   Plaintiff is directed to respond to defendant's counterclaims within 60 days of the date of this order.

Defendant demonstrated prima facie entitlement to summary judgment on the doctrine of assumption of risk.   Plaintiff was engaged in a sport or recreational activity, the commonly appreciated risks of which are inherent in, and arise out of, the nature of the sport generally and are consequent upon such participation (see e.g. Morgan v. State of New York, 90 N.Y.2d 471, 484, 662 N.Y.S.2d 421, 685 N.E.2d 202 [1997] ).   Here, the risk of the main parachute failing to open during a tandem sky dive was perfectly obvious.   Indeed, plaintiff was given a reserve parachute.   Plaintiff failed to raise a triable issue of fact as to whether the injury-causing event resulted from defendant's negligence, creating unique and dangerous conditions beyond those inherent in the sport (id. at 485, 662 N.Y.S.2d 421, 685 N.E.2d 202).

So much of the waiver and release signed by plaintiff as purports to exempt defendant from its own negligence is void under General Obligations Law § 5-326.   Severance of that provision leaves the rest of the contract intact (see Caruso v. Allnet Communication Servs., 242 A.D.2d 484, 485, 662 N.Y.S.2d 468 [1997] ).   As to defendant's counterclaims, however, we note that whether agreements not to sue a defendant and to pay its attorney's fees and litigation costs might transgress the public policy of promoting recreational activities advanced by § 5-326 does not appear to have been considered by the courts (cf. Ciofalo v. Vic Tanney Gyms, 10 N.Y.2d 294, 297, 220 N.Y.S.2d 962, 177 N.E.2d 925 [1961] [exculpatory clause not barred by “overriding public interest”] ), the parties have not briefed the issue, and we do not reach it (see Brown v. Christopher St. Owners Corp., 87 N.Y.2d 938, 939, 641 N.Y.S.2d 221, 663 N.E.2d 1251 [1996];  Bacchiocchi v. Ranch Parachute Club, 273 A.D.2d 173, 176, 710 N.Y.S.2d 54 [2000] ).   Defendant's motion to enter judgment by default (CPLR 3215[c] ) was appropriately denied in the exercise of discretion (cf. Charles F. Winson Gems v. D. Gumbiner, Inc., 85 A.D.2d 69, 71, 448 N.Y.S.2d 471 [1982], affd. 57 N.Y.2d 813, 455 N.Y.S.2d 600, 441 N.E.2d 1118 [1982] ), and plaintiff should be afforded the opportunity to assert any defenses she might have to defendant's counterclaims.