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Brookner v New York Roadrunners Club, Inc., et al., 2008 NY Slip Op 4638; 51 A.D.3d 841; 858 N.Y.S.2d 348; 2008 N.Y. App. Div. LEXIS 4393

Brookner v New York Roadrunners Club, Inc., et al., 2008 NY Slip Op 4638; 51 A.D.3d 841; 858 N.Y.S.2d 348; 2008 N.Y. App. Div. LEXIS 4393

[*1] Larry Brookner, Appellant, v New York Roadrunners Club, Inc., et al., Respondents. (Index No. 2902/06)

2007-02310, 2007-02712

SUPREME COURT OF NEW YORK, APPELLATE DIVISION, SECOND DEPARTMENT

2008 NY Slip Op 4638; 51 A.D.3d 841; 858 N.Y.S.2d 348; 2008 N.Y. App. Div. LEXIS 4393

May 20, 2008, Decided

SUBSEQUENT HISTORY: Appeal denied by Brookner v. N.Y. Roadrunners Club, Inc., 11 NY3d 704, 894 NE2d 1198, 2008 N.Y. LEXIS 2654, 864 NYS2d 807 (N.Y., Sept. 9, 2008)

HEADNOTES

Release–Scope of Release

COUNSEL: David A. Kapelman, P.C., New York, N.Y. (Richard H. Bliss of counsel), for appellant.

Havkins Rosenfeld Ritzert & Varriale, LLP, New York, N.Y. (Steven Rosenfeld and Carmen Nicolaou of counsel), for respondents.

JUDGES: ANITA R. FLORIO, J.P., HOWARD MILLER, MARK C. DILLON, WILLIAM E. McCARTHY, JJ. FLORIO, J.P., MILLER, DILLON and McCARTHY, JJ., concur.

OPINION

[**841] [***348]

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,

[***349] 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 [*2] any liability arising from ordinary negligence (see Bufano v National Inline Roller Hockey Assn., 272 AD2d 359, 359-360, 707 NYS2d 223 [2000]; cf. Gross v Sweet, 49 NY2d 102, 109-110, 400 NE2d 306, 424 NYS2d 365 [1979]; Doe v Archbishop Stepinac High School, 286 AD2d 478, 479, 729 NYS2d 538 [2001]). In light of this waiver and release, [**842] 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 AD3d 410, 851 NYS2d 278 [2008]; see also Booth v 3669 Delaware, 92 NY2d 934, 703 NE2d 757, 680 NYS2d 899 [1998]; Lee v Boro Realty, LLC, 39 AD3d 715, 716, 832 NYS2d 453 [2007]; Koster v Ketchum Communications, 204 AD2d 280, 611 NYS2d 298 [1994]).

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 Stulweissenburg v Town of Orangetown, 223 AD2d 633, 634, 636 NYS2d 853 [1996]). 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 AD2d 758, 673 NYS2d 181 [1998]; see Fazzinga v Westchester Track Club, 48 AD3d 410, 851 NYS2d 278 [2008]).

The plaintiff’s remaining contentions are without merit. Florio, J.P., Miller, Dillon and McCarthy, JJ., concur.

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