Bateman v. Sport Photo and EMS, Inc., 1983 U.S. Dist. LEXIS 15461 (S.D. New York 1983)

Bateman v. Sport Photo and EMS, Inc., 1983 U.S. Dist. LEXIS 15461 (S.D. New York 1983)

Maureen S. Bateman, Plaintiff, against Sport Photo and EMS, Inc., Defendants.

 

No. 81 Civ. 4790 (MJL)

 

UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF NEW YORK

 

1983 U.S. Dist. LEXIS 15461

 

July 14, 1983

 

COUNSEL: [*1] J. DENNIS McGRATH, ESQ., 321 East 89th Street, New York, New York 10028, for plaintiff.

ROGERS & WELLS, 200 Park Avenue, New York, New York 10166, for defendants.

OPINION BY: LOWE

OPINION

MEMORANDUM OPINION AND ORDER

MARY JOHNSON LOWE, D. J.

This action, brought pursuant to New York Civil Rights Law Sections 50 and 51, was originally commenced in New York Supreme Court. The action was subsequently removed by the defendants to this Court. Plaintiff alleges that defendants used a photograph of her taken during the 1980 Perrier 10 Kilometer Run in New York Ciry, for advertising purposes, without her written consent, in violation of the above-mentioned statute. 1 Defendants have moved for summary judgment on the ground that plaintiff signed a release on her entry blank which gave the New York Roadrunners Club [“NYRRC”] and its assigns “full permission… to use any photographs, video tapes, motion pictures, recordings, or any other record of this event [the Perrier 10 Kilometer Run] for any legitimate purpose.” Defendants claim that NYRRC assigned the rights, acquired by virtue of plaintiff’s release, to Sportphoto for use in connection with Sportphoto’s business of soliciting [*2] mail order sales of photographs from contestants in competitive foot races.

1 Briefly stated, defendants’ business operates as follows. Defendants’ employees take photographs of runners as they participate in a race. Thereafter, defendants obtain the names and addresses of the participants from the sponsor of the race, and mail the participants “proof cards” of the photograph along with an offer to sell them a color copy of the photograph. During the course of the Perrier 10K defendants took plaintiff’s photograph, which was subsequently purchased by plaintiff’s husband. Plaintiff does not object to the sending of the proof card or the sale of her photograph to her husband. Rather, plaintiff objects to the use of her photograph as part of an advertisement of defendants’ Special Poster Offer”. Almost 6,000 copies of the Special Poster Offer, including plaintiff’s photograph, were printed and mailed to participants in the 1981 New York Marathon. (Evenson Dep. at 55).

Plaintiff argues that there are two major issues of material fact which preclude the granting of summary judgment in favor of defendants; first, whether plaintiff, by signing the so-called “release”, consented [*3] to the use of her photograph for advertising purposes unrelated to the event in which she was running; and second, whether there was a valid assigment by NYRRC to Sportphoto. The Court agrees that there are genuine issues of material fact in this case which render summary judgment inappropriate.

The parties’ dispute concerning the correct interpretation of the “release” centers around the use of the phrase “for any legitimate purpose”. Defendants argue that “legitimate” should be given its dictionary meaning, which would clearly encompass advertising and commercial purposes. Plaintiff responds, and the Court agrees, that the phrase should not be construed without reference to the “circumstances under which the entry blank was signed, and the purpose for which it was required – getting a number to run a race.” Plaintiff’s Op. Memo., at 20.

[HN1] The law is clear with respect to the interpretation of releases generally that their “meaning and coverage necessarily depend as in the case of contracts generally, upon the controversy being settled and upon the purpose for which the release was actually given. Certainly, a release may not be read to cover matters which the parties did [*4] not desire or intend to dispose of”. Cahill v. Regan, 5 N.Y.2d 292, 299, 184 N.Y.S.2d 348, 354, 157 N.E.2d 505, 510, quoted in Tarantola v. Williams, 48 AD 2 552 371 N.Y.S.2d 136, 139. The ultimate question in this case is whether, in light of all of the surrounding circumstances, the parties could reasonably have intended plaintiff’s signature on her entry blank to signify her consent to the use of her photograph for commercial purposes in connection with a different race a year and a half later; or whether, as plaintiff contends, the only use contemplated was promotional activity in connection with the race plaintiff was then entering. 2 The Court is convinced on the record before it that this question should be resolved by the trier of fact.

2 Plaintiff’s affidavit makes clear that if a photograph of her running in the Perrier 10K appeared in an article about that race, or if the sponsor of the race showed a video-tape of the race, in which plaintiff happened to appear she would deem those uses “legitimate” within the meaning of the release. Bateman Aff. P29.

This case is not, as defendants suggest, analagous to cases in which courts have broadly construed releases [*5] entered into by professional models and actors. Unlike the plaintiffs in those cases, who knowingly signed releases for commercial purposes in pursuit of their careers, the plaintiff here is an amateur athlete who signed a release for the sole purpose of entering a footrace. What constitutes a “legitimate use” of an individual’s photograph may vary from one context to another. Thus, the present case raises factual questions concerning the intent of the parties and the proper interpretation to be given the release.

Plaintiff also claims that there is a genuine issue of material fact with respect to whether defendants were the assignees of whatever rights NYRRC obtained by virtue of the entry blank “release”. Plaintiff acknowledges that there was a verbal agreement in 1979 (and renewed thereafter), between NYRRC and defendants giving defendants the exclusive right to take photographs of runners at the Perrier 10K for subsequent mail order sale. However, she argues that this agreement did not constitute an “assignment” of any rights on the entry blank; nor did it contemplate the use of one runner’s photograph for advertising directed at other runners.

Defendants maintain that [*6] in construing the agreement between NYRRC and defendants, the intent of the parties is controlling. They argue that in this case, the intent of the parties has been explicitly set out in the affidavits of Mr. Lebow, president of the NYRRC, and Mr. Evenson, president of defendants. Both Mr. Lebow and Mr. Evenson state that NYRRC intended to assign defendants the right to use runners’ photographs for all legitimate purposes, including advertising in connection with defendants’ business of selling photographs by mail. It is defendants’ position that in light of these clear expressions of intent, the assignment issue should be resolved as a matter of law.

Plaintiff argues that the rest of the evidence, including portions of Mr. Evenson’s own deposition testimony, contradicts the statements of Mr. Lebow and Mr. Evenson with respect to their intent at the time the agreement was reached, and thus raises a triable issue of fact. For example, Mr. Evenson testified during his deposition that he and Mr. Lebow never discussed the language of the entry blank “release”, the assignment of rights under the entry blank “release”, or the use of a participant’s photograph in the manner challenged [*7] herein, during negotiations for the agreement.Mr. Lebow testified that he could not recall whether these issues had been discussed. Defendants respond that the parties need not have anticipated or discussed every specific application of the agreement so long as the agreement was sufficiently broad to encompass those applications.

We find that the plaintiff has raised questions of credibility and intent which, even where the evidence weighs strongly in favor of one side, are better left to the trier of fact.

For the reasons stated above, defendants’ motion for summary judgment is hereby denied.

It is So Ordered.

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Tedesco et al., v. Triborough Bridge and Tunnel Authority, 250 A.D.2d 758; 673 N.Y.S.2d 181; 1998 N.Y. App. Div. LEXIS 5801

Tedesco et al., v. Triborough Bridge and Tunnel Authority, 250 A.D.2d 758; 673 N.Y.S.2d 181; 1998 N.Y. App. Div. LEXIS 5801

Theodore Tedesco et al., Appellant, v. Triborough Bridge and Tunnel Authority, Respondent. (And a Third-Party Action.)

97-06400

SUPREME COURT OF NEW YORK, APPELLATE DIVISION, SECOND DEPARTMENT

250 A.D.2d 758; 673 N.Y.S.2d 181; 1998 N.Y. App. Div. LEXIS 5801

April 13, 1998, Argued

May 18, 1998, Decided

PRIOR HISTORY: [***1] In an action to recover damages for personal injuries, etc., the plaintiffs appeal from an order of the Supreme Court, Kings County (Hutcherson, J.), dated April 30, 1997, which (1) granted the motion of the defendant Triborough Bridge and Tunnel Authority for summary judgment dismissing the complaint, and (2) denied their cross motion to strike the affirmative defense of release.

DISPOSITION: ORDERED that the order is affirmed, with costs.

COUNSEL: Sullivan & Liapakis, P.C., New York, N.Y. (John F. Nash and Stephen C. Glaser of counsel), for appellants.

Wallace D. Gossett, Brooklyn, N.Y. (Lawrence Heisler of counsel), for respondent.

JUDGES: Friedmann, J. P., Goldstein, Florio and Luciano, JJ., concur.

OPINION

[*758] [**182] Ordered that the order is affirmed, with costs.

The plaintiff Theodore Tedesco was injured while riding his bicycle during the “Bike New York” five-borough bicycle tour, sponsored by the third-party defendant, American Youth Hostels, Inc. The Supreme Court correctly determined that the release signed by the plaintiff Tedesco prior to his participation in the tour contained broad language which included the defendant Triborough Bridge and Tunnel Authority (hereinafter [***2] the Authority) as one of the entities exempted from liability, even though the Authority was not specifically named in the release document (see, Wells v Shearson Lehman/American Express, 72 NY2d 11, 23). The release document specifically named the Metropolitan Transportation Authority (hereinafter the MTA) and “any other involved … representatives of the foregoing”. Since the Authority is a board comprised of 17 members of the MTA, serving ex officio, and all holding offices in the MTA (Public Authorities Law § 552), the Authority is an affiliated representative of the MTA and is, therefore, exempted from liability under the terms of the release document.

Contrary to the plaintiffs’ contention, the release is not invalidated pursuant to General Obligations Law § 5-326, since the Verrazano Narrows Bridge, where the plaintiff Tedesco was injured, is not a “place of amusement or recreation”.

[*759] The plaintiffs’ remaining contentions are without merit.

Friedmann, J. P., Goldstein, Florio and Luciano, JJ., concur.

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NY court explains how it interprets § 5-326 which disallows releases in NY. Upholds release for a marathon

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

Language of General Obligations Law § 5-326 is interpreted

English: ING NYC Marathon

In this case, the plaintiff sued the New York Road Runners Club which puts on the ING New York Marathon. His injuries were not stated in the claim nor were his

claims. A New York statute restricts the use of releases. See States that do not Support the Use of a Releaseand no court has ever clearly defined how they get around the statute when a release is raised as a defense.

The Supreme Court of New York, Appellate Division which wrote this decision held that General Obligations Law § 5-326 did not apply.

General Obligations Law § 5-326 states:

§ 5-326.  Agreements exempting pools, gymnasiums, places of public amusement or recreation and similar establishments from liability for negligence void and unenforceable

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.

The court then looked at the language of the statute and concluded the release applied in this case because the entry fee for the marathon was not a fee for admission into the streets of New York City. Further the court found the streets of New York City, where the plaintiff was injured were not places of amusement.

…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. Further, the public roadway in Brooklyn where the plaintiff alleges he was injured is not a “place of amusement or recreation”

So Now What?

Women's leading pack at Mile 17 - Shalane Flan...

Although the interpretation by the court could be viewed in another light, clearly  most courts in New York want to uphold releases and if given the opportunity will write a decision which does so.

Make sure, if you are based in New York, that when your release is written it takes the statute into  consideration. You can have signors of the release agree to the release that you are not a place of amusement, and the fee paid is not for admission.

Other New York Articles:

Electronic Signature on release in NY upheld.

New York Decision explains the doctrine of Primary Assumption of the Risk for cycling

Summer camp supervision issues are always part of any lawsuit and tough to determine in New York.

How to fight a Bicycle Product Liability case in New York. One step at a time

What do you think? Leave a comment.

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Cotty v Town of Southampton, et al., 2009 NY Slip Op 4020; 64 A.D.3d 251; 880 N.Y.S.2d 656; 2009 N.Y. App. Div. LEXIS 3919

Cotty v Town of Southampton, et al., 2009 NY Slip Op 4020; 64 A.D.3d 251; 880 N.Y.S.2d 656; 2009 N.Y. App. Div. LEXIS 3919

[*1] Karen Cotty, plaintiff-respondent, v Town of Southampton, et al., defendants-appellants-respondents, Suffolk County Water Authority, defendant-appellant- respondent/fourth-party plaintiff-respondent, Elmore Associates Construction Corp., defendant third-party plaintiff, et al., defendant; Peter Deutch, third-party defendant/fourth-party defendant-appellant, et al., fourth-party defendant. (Index No. 20312/03)

2007-08536

SUPREME COURT OF NEW YORK, APPELLATE DIVISION, SECOND DEPARTMENT

2009 NY Slip Op 4020; 64 A.D.3d 251; 880 N.Y.S.2d 656; 2009 N.Y. App. Div. LEXIS 3919

May 19, 2009, Decided

NOTICE:

THE LEXIS PAGINATION OF THIS DOCUMENT IS SUBJECT TO CHANGE PENDING RELEASE OF THE FINAL PUBLISHED VERSION. THIS OPINION IS UNCORRECTED AND SUBJECT TO REVISION BEFORE PUBLICATION IN THE OFFICIAL REPORTS.

COUNSEL: Thomas C. Sledjeski, PLLC (Anita Nissan Yehuda, P.C., Roslyn Heights, N.Y., of counsel), for defendant-appellant-respondent Town of Southampton.

Shayne, Dachs, Corker, Sauer & Dachs, LLP, Mineola, N.Y. (Norman H. Dachs and Jonathan A. Dachs of counsel), for defendant-appellant-respondent/fourth-party plaintiff-respondent Suffolk County Water Authority and defendant-appellant-respondent CAC Contracting Corp (one brief filed).

Loccisano & Larkin, Hauppauge, N.Y. (Robert X. Larkin of counsel), for third-party [*2] defendant/fourth-party defendant-appellant Peter Deutch.

Rosenberg & Gluck, LLP, Holtsville, N.Y. (Andrew Bokar of counsel), for plaintiff-respondent.

JUDGES: PETER B. SKELOS, J.P., MARK C. DILLON, FRED T. SANTUCCI, RUTH C. BALKIN, JJ. DILLON, SANTUCCI and BALKIN, JJ., concur.

OPINION BY: SKELOS

OPINION

[**252] [***658] APPEAL by the defendant Town of Southampton, in an action to recover damages for personal injuries, as limited by its brief, from so much of an order of the Supreme Court (Robert W. Doyle, J.), dated August 6, 2007, and entered in Suffolk County, as denied its motion for summary judgment dismissing the complaint and all cross claims insofar as asserted against it; SEPARATE APPEAL by the defendants Suffolk County Water Authority and CAC Contracting Corp., as limited by their brief, from so much of the same order as denied their motion for summary judgment dismissing the complaint and all cross claims insofar as asserted against them; and SEPARATE APPEAL by the fourth-party defendant Peter Deutch, as limited by his brief, from so much of the same order as denied that branch of his separate cross motion which was for summary judgment dismissing the fourth-party complaint and all related cross claims insofar as asserted against him. Justice Dillon has been substituted for former Justice Lifson (see 22 NYCRR 670.1[c]).

OPINION & ORDER

SKELOS, J.P. [HN1] When a person voluntarily participates in certain sporting events or athletic activities, an action to recover damages for injuries resulting from conduct or conditions that are inherent in the sport or activity is barred by the doctrine of primary assumption of risk. In this case, where the plaintiff was injured while riding a bicycle on a paved public roadway, we confront the threshold question of whether the plaintiff was engaged in an activity that subjected her to the doctrine of primary assumption of risk.

Beginning on July 24, 2002, pursuant to a contract with the defendant Suffolk County Water Authority (hereinafter SCWA), the defendant CAC Contracting Corp. replaced the asphalt in a trench that had been dug along the edge of Deerfield Road in Southampton for the purpose of installing a conduit for a water [**253] main. Two layers of asphalt were to be laid to fill the trench and bring it level with the preexisting roadway, but at the time of the subject accident, only one layer of asphalt had been laid, leaving a “lip” approximately one inch deep, parallel to the length of the road, where the preexisting roadway and the newly paved section met. At the site of the accident, the lip was not marked by any barricades or traffic cones.

On July 27, 2002, the plaintiff, a member of a bicycle club which engaged in long-distance rides, was the last bicyclist in one of several groups of eight riders cycling on Deerfield Road during a 72-mile ride. The plaintiff testified at a deposition that the road “was not perfectly smooth,” and contained potholes. She had previously ridden on the subject road approximately 20 to 30 times, as recently as two to four weeks before the accident, and was aware of construction activity on various portions of the road. The road had no shoulder, and the plaintiff was riding approximately one to two feet from the edge of the road, and approximately 1 to 11/2 wheel lengths behind the fourth-party defendant, Peter Deutch, at a maximum speed of 17 to 18 miles per hour. The bicyclists in the front of the line began a “hopping” maneuver with their bicycles to avoid the “lip” in the road. Deutch unsuccessfully attempted the hopping maneuver, and fell in the plaintiff’s path. Seeking to avoid Deutch, the plaintiff swerved and slid into the road where she collided with an oncoming car, sustaining injuries.

The plaintiff commenced this personal injury action against, among others, the Town of Southampton, the SCWA, and CAC Contracting Corp. (hereinafter collectively the defendants), and the SCWA impleaded Deutch. The defendants moved for summary judgment dismissing the complaint and all cross claims insofar as asserted against each of them, and Deutch cross-moved for summary judgment dismissing the fourth-party complaint and all related cross claims insofar as asserted against him. The defendants and Deutch (hereinafter collectively the appellants) contended, inter alia, that the plaintiff had assumed the risks commonly associated [***659] with bicycle riding. The Supreme Court denied the appellants’ motions.

[HN2] Under the doctrine of primary assumption of risk, a person who voluntarily participates in a sporting activity generally consents, by his or her participation, to those injury-causing events, conditions, and risks which are inherent in the activity (see Morgan v State of New York, 90 NY2d 471, 484, 685 N.E.2d 202, 662 N.Y.S.2d 421; Turcotte v Fell, 68 NY2d 432, 439, 502 N.E.2d 964, 510 N.Y.S.2d 49). Risks inherent in a sporting [**254] activity are those which are known, apparent, natural, or reasonably foreseeable consequences of the participation (see Morgan v State of New York, 90 NY2d at 484; Turcotte v Fell, 68 NY2d at 439). Because determining the existence and scope of a duty of care requires “an examination of plaintiff’s reasonable expectations of the care owed him by others” (Turcotte v Fell, 68 NY2d at 437), the [*3] plaintiff’s consent does not merely furnish the defendant with a defense; it eliminates the duty of care that would otherwise exist. Accordingly, when a plaintiff assumes the risk of participating in a sporting event, “the defendant is relieved of legal duty to the plaintiff; and being under no duty, he cannot be charged with negligence” (id. at 438, quoting Prosser and Keeton, Torts § 68, at 480-481 [5th ed]).

The policy underlying the doctrine of primary assumption of risk is “to facilitate free and vigorous participation in athletic activities” (Benitez v New York City Bd. of Educ., 73 NY2d 650, 657, 541 N.E.2d 29, 543 N.Y.S.2d 29). Without the doctrine, athletes may be reluctant to play aggressively, for fear of being sued by an opposing player. [HN3] As long as the defendant’s conduct does not unreasonably increase the risks assumed by the plaintiff, the defendant will be shielded by the doctrine of primary assumption of risk (see Morgan v State of New York, 90 NY2d at 485; Benitez v New York City Bd. of Educ., 73 NY2d at 658; Muniz v Warwick School Dist., 293 AD2d 724, 743 N.Y.S.2d 113).

[HN4] The doctrine also has been extended to the condition of the playing surface. If an athlete is injured as a result of a defect in, or feature of, the field, court, track, or course upon which the sport is being played, the owner of the premises will be protected by the doctrine of primary assumption of risk as long as risk presented by the condition is inherent in the sport (see Trevett v City of Little Falls, 6 NY3d 884, 849 N.E.2d 961, 816 N.Y.S.2d 738; Sykes v County of Erie, 94 NY2d 912, 728 N.E.2d 973, 707 N.Y.S.2d 374; Ribaudo v La Salle Inst., 45 AD3d 556, 846 N.Y.S.2d 209). If the playing surface is as safe as it appears to be, and the condition in question is not concealed such that it unreasonably increases risk assumed by the players, the doctrine applies (see Fintzi v New Jersey YMHA-YWHA Camps, 97 NY2d 669, 765 N.E.2d 288, 739 N.Y.S.2d 85; Turcotte v Fell, 68 NY2d at 439; Rosenbaum v Bayis Ne’Emon, Inc., 32 AD3d 534, 820 N.Y.S.2d 326; Joseph v New York Racing Assn., 28 AD3d 105, 108, 809 N.Y.S.2d 526).

The Court of Appeals has had no occasion to expound upon the threshold question of what type of activity qualifies as participation in a sporting event for purposes of applying the doctrine of primary assumption of risk. In Turcotte v Fell, for [**255] example, the Court had little difficulty in concluding that the doctrine applied to the plaintiff, a professional jockey riding in [***660] a horse race at a track owned and operated by the New York Racing Association. Here, had the plaintiff been a professional athlete involved in a bicycle race on a track or a closed course, the doctrine of primary assumption of risk clearly would apply (cf. Morgan v State of New York, 90 NY2d at 486; Joseph v New York Racing Assn., 28 AD3d at 108-109). This case, however, presents different circumstances.

[HN5] In determining whether a bicycle rider has subjected himself or herself to the doctrine of primary assumption of risk, we must consider whether the rider is engaged in a sporting activity, such that his or her consent to the dangers inherent in the activity may reasonably be inferred. In our view, it is not sufficient for a defendant to show that the plaintiff was engaged in some form of leisure activity at the time of the accident. If such a showing were sufficient, the doctrine of primary assumption of risk could be applied to individuals who, for example, are out for a sightseeing drive in an automobile or on a motorcycle, or are jogging, walking, or inline roller skating for exercise, and would absolve municipalities, landowners, drivers, and other potential defendants of all liability for negligently creating risks that might be considered inherent in such leisure activities. Such a broad application of the doctrine of primary assumption of risk would be completely disconnected from the rationale for its existence. The doctrine is not designed to relieve a municipality of its duty to maintain its roadways in a safe condition (see Sykes v County of Erie, 94 NY2d at 913 [“the doctrine of assumption of risk does not exculpate a landowner from liability for ordinary negligence in maintaining a premises”]), and such a result does not become justifiable merely because the roadway in question happens to be in use by a person operating a bicycle, as opposed to some other means of transportation (see Caraballo v City of Yonkers, 54 AD3d 796, 796-797, 865 N.Y.S.2d 229 [“the infant plaintiff cannot be said, as a matter of law, to have assumed risk of being injured by a defective condition of a pothole on a public street, merely because he was participating in the activity [*4] of recreational noncompetitive bicycling, and using the bicycle as a means of transportation”] [citations omitted]).

In prior decisions involving injuries sustained by bicycle riders, this Court has concluded that the doctrine of primary assumption of risk applies in some situations, but not in others. For example, in Calise v City of New York (239 AD2d 378, [**256] 657 N.Y.S.2d 430), the plaintiff was thrown from a mountain bike, which he was riding on an unpaved dirt and rock path in a park, when the bike struck an exposed tree root. This Court held that the plaintiff’s action was barred by the doctrine of primary assumption of risk, reasoning that “[a]n exposed tree root is a reasonably foreseeable hazard of the sport of biking on unpaved trails, and one that would be readily observable” (id. at 379; see Rivera v Glen Oaks Vil. Owners, Inc., 41 AD3d 817, 820-821, 839 N.Y.S.2d 183 [doctrine of primary assumption of risk applied to plaintiff who was injured when his bicycle struck a hole in a dirt trail located in a wooded area]; Restaino v Yonkers Bd. of Educ., 13 AD3d 432, 785 N.Y.S.2d 711 [doctrine of primary assumption of risk applied to plaintiff whose bicycle struck “a pothole or rut in the closed parking lot/driveway area of a public school”]; Goldberg v Town of Hempstead, 289 AD2d 198, 733 N.Y.S.2d 691 [doctrine of primary assumption of risk applied to plaintiff who was injured when her bicycle struck a hole in the [***661] ground as she rode on a dirt base path of a baseball field]).

By contrast, in both Vestal v County of Suffolk (7 AD3d 613, 776 N.Y.S.2d 491) and Moore v City of New York (29 AD3d 751, 816 N.Y.S.2d 131), this Court held that the plaintiffs, who were injured while riding their bicycles on paved pathways in public parks, ” cannot be said as a matter of law to have assumed risk of being injured as a result of a defective condition on a paved pathway merely because [they] participated in the activity of bicycling’” (Moore v City of New York, 29 AD3d at 752, quoting Vestal v County of Suffolk, 7 AD3d at 614-615; see Caraballo v City of Yonkers, 54 AD3d at 796-797; Berfas v Town of Oyster Bay, 286 AD2d 466, 729 N.Y.S.2d 530 [defendant failed to establish, as a matter of law, that action by plaintiff, who was thrown from his bicycle when he hit a rut in a paved road, was barred by primary assumption of risk doctrine]). Significantly, this Court reached the same conclusion in Phillips v County of Nassau (50 AD3d 755, 856 N.Y.S.2d 172), holding that the doctrine of primary assumption of risk did not apply to a plaintiff who was injured when his bicycle struck a raised concrete mound on a public roadway, even though the plaintiff, like the plaintiff in the instant case, was “an avid bicyclist” and was participating in “a noncompetitive, recreational bicycle ride with about eight or nine other riders” (id. at 756).

These decisions recognize that [HN6] riding a bicycle on a paved public roadway normally does not constitute a sporting activity for purposes of applying the primary assumption of risk doctrine. By contrast, mountain biking, and other forms of off-road [**257] bicycle riding, can more readily be classified as sporting activity. Indeed, the irregular surface of an unimproved dirt-bike path is “presumably the very challenge that attracts dirt-bike riders as opposed to riding on a paved surface” (Schiavone v Brinewood Rod & Gun Club, Inc., 283 AD2d 234, 237, 726 N.Y.S.2d 615).

Of course, the distinction between using a bicycle to engage in a sporting activity and using a bicycle for some other purpose will sometimes be elusive. It is important to draw that line, however, because “[e]xtensive and unrestricted application of the doctrine of primary assumption of risk to tort cases generally represents a throwback to the former doctrine of contributory negligence, wherein a plaintiff’s own negligence barred recovery from the defendant'” (Trupia v Lake George Cent. School Dist., 62 A.D.3d 67, 875 N.Y.S.2d 298, 2009 NY Slip Op 01571, [3d Dept 2009], quoting Pelzer v Transel El. & Elec. Inc., 41 AD3d 379, 381, 839 N.Y.S.2d 84). That tendency is illustrated by the appellants’ briefs in this case, which repeatedly emphasize that the plaintiff was riding too closely behind Deutch. That argument is misplaced, since the issue of whether the plaintiff was following too closely, or otherwise acted negligently, is a matter of [HN7] comparative fault, which must be determined by the factfinder at trial and not as a matter of law at the summary judgment stage (see CPLR 1411; Roach v Szatko, 244 AD2d 470, 471, 664 N.Y.S.2d 101; Cohen v [*5] Heritage Motor Tours, 205 AD2d 105, 618 N.Y.S.2d 387).

In sum, [HN8] it cannot be said, as a matter of law, that merely by choosing to operate a bicycle on a paved public roadway, or by engaging in some other form of leisure activity or exercise such as walking, jogging, or roller skating on a paved public roadway, a plaintiff consents to the negligent maintenance of such roadways by a municipality or a contractor. Adopting such a rule could have the arbitrary effect [***662] of eliminating all duties owed to participants in such leisure or exercise activities, not only by defendants responsible for road maintenance, but by operators of motor vehicles and other potential tortfeasors, as long as the danger created by the defendant can be deemed inherent in such activities. We decline to construe the doctrine of primary assumption of risk so expansively.

For the foregoing reasons, the appellants failed to make a prima facie showing that the primary assumption of risk doctrine is applicable to the activity in which the plaintiff was engaged at the time of her accident. Thus, the Supreme Court properly denied the defendants’ motions for summary judgment dismissing the complaint and all cross claims insofar as asserted [**258] against them and Deutch’s cross motion for summary judgment dismissing the fourth-party complaint and all related cross claims insofar as asserted against him as barred by the doctrine of primary assumption of risk.

Moreover, the defendants failed to establish as a matter of law that the unbarricaded lip created by the road construction was not a “unique and . . . dangerous condition over and above the usual dangers that are inherent” (Owen v. R.J.S. Safety Equipment, Inc.., 79 N.Y.2d 967, 970, 591 N.E.2d 1184, 582 N.Y.S.2d 998) in the activity of bicycle riding on a paved roadway (see Vestal v County of Suffolk, 7 AD3d 613, 614, 776 N.Y.S.2d 491 [plaintiff did not assume risk of being injured while riding bicycle on defective paved pathway where there were “no signs, chains, or barriers” present “to indicate that it was not suitable for bicycling“]; see also Phillips v County of Nassau, 50 AD3d 755, 856 N.Y.S.2d 172; Berfas v Town of Oyster Bay, 286 AD2d 466, 729 N.Y.S.2d 530).

The appellants’ remaining contentions are without merit.

Accordingly, we affirm the order insofar as appealed from.

DILLON, SANTUCCI and BALKIN, JJ., concur.

ORDERED that the order is affirmed insofar as appealed from, with one bill of costs payable by the appellants appearing separately and filing separate briefs.


Bernstein v Wysoki et al., 77 A.D.3d 241; 907 N.Y.S.2d 49; 2010 N.Y. App. Div. LEXIS 6579; 2010 NY Slip Op 6475; 244 N.Y.L.J. 43

Bernstein v Wysoki et al., 77 A.D.3d 241; 907 N.Y.S.2d 49; 2010 N.Y. App. Div. LEXIS 6579; 2010 NY Slip Op 6475; 244 N.Y.L.J. 43

Jordan Bernstein, an Infant, by His Mother and Natural Guardian, Malka Bernstein, et al., Respondents, v Randee Wysoki et al., Appellants, et al., Defendants. (Index No. 20686/07)

2008-06606, 2008-09740

SUPREME COURT OF NEW YORK, APPELLATE DIVISION, SECOND DEPARTMENT

77 A.D.3d 241; 907 N.Y.S.2d 49; 2010 N.Y. App. Div. LEXIS 6579; 2010 NY Slip Op 6475; 244 N.Y.L.J. 43

August 24, 2010, Decided

PRIOR HISTORY: Appeals from orders of the Supreme Court, Nassau County (Thomas P. Phelan, J.), entered June 13, 2008 and September 30, 2008. The order entered June 13, 2008, insofar as appealed from, denied that branch of the cross motion of defendants Randee Wysoki, Dina Farrell, Michael Farrell and Gregory Scagnelli to dismiss the complaint insofar as asserted against them pursuant to CPLR 3211 (a) (1) and 501 based on a forum selection clause. The order entered September 30, 2008, insofar as appealed from, upon reargument, adhered to the original determination and denied that branch of the cross motion of defendant Julie Higgins which was to dismiss the complaint insofar as asserted against her pursuant to CPLR 3211 (a) (1) and 501 based on the forum selection clause.

Bernstein v. Wysoki, 2008 N.Y. Misc. LEXIS 10774 (N.Y. Sup. Ct., Sept. 26, 2008)

Bernstein v. Wysoki, 2008 N.Y. Misc. LEXIS 9483 (N.Y. Sup. Ct., June 10, 2008)

COUNSEL: [***1] Martin Clearwater & Bell, LLP, New York City (William P. Brady, Timothy M. Smith and Stewart G. Milch of counsel), for appellants.

Napoli Bern Ripka, LLP, New York City (Denise A. Rubin of counsel), for respondents.

JUDGES: REINALDO E. RIVERA, J.P., HOWARD MILLER, THOMAS A. DICKERSON, SHERI S. ROMAN, JJ. RIVERA, J.P., MILLER and ROMAN, JJ., concur.

OPINION BY: DICKERSON, J.

OPINION

[*243] [***2] [**51] Dickerson, J.

Factual Background and the Camp Contract

On or about June 25, 2007 the plaintiff Malka Bernstein (hereinafter Malka) entered into a contract (hereinafter the Camp Contract) with the defendant Camp Island Lake (hereinafter the Camp) for her then 13-year-old son, the plaintiff Jordan Bernstein (hereinafter Jordan), to attend the Camp during summer 2007. The Camp is located in Starrucca, Wayne County, Pennsylvania, where it also maintains a summer office. The Camp maintains a winter office in New York City.

The second paragraph of the Camp Contract provided:

“If it is necessary to obtain off-camp medical/surgical/dental services for the camper, such expenses shall be paid by the parent except the portion supplied by the camp medical staff. Authority is granted without limitation to the camp/assigns in all medical matters to hospitalize/treat/order injections/anesthesia/surgery for the camper. The parent is responsible for all pre-existing medical conditions, out of camp medical/surgical/hospital/pharmaceutical/allergy expenses and for providing [*244] adequate quantities [***3] of necessary medications and allergy serums to camp in pharmacy containers with doctor’s instructions. The parent(s) or legal guardian(s) hereby states that the camper is in good, normal health and has no abnormal physical, emotional, or mental handicaps” (emphasis added).

The Camp Contract also contained a forum selection clause. The sixth paragraph of the Camp Contract provided:

“Enclosed with this agreement is $ 1000 per child enrolled in program. Payments on account of tuition (less $ 100 registration fee) will be refunded if requested before January 1st. Cancellations of sessions will not be accepted after January 1st. Thereafter, no refunds will be made. All refunds will be made on or about May 1st. Installments on the balance will be due on January 1st, March 1st, & May 1st. A returned check fee of $ 25 will be applied to all returned checks. These rates are subject to change without notice. Any outstanding balance precludes admission to camp. The [***4] venue of any dispute that may arise out of this agreement or otherwise between the parties to which the camp or its agents is a party shall be either the local District Justice Court or the Court of Common Pleas, Wayne County, Pennsylvania” (emphasis added).

The eighth and final paragraph of the Camp Contract provided, in part, “[t]he parent represents that he/she has full authority [**52] to enroll the camper/to authorize participation in activities/medical care and to contract the aforesaid.”

On or about August 8, 2007, while enrolled at the Camp, Jordan developed a pain in his lower abdomen. The defendants Randee Wysoki and Jill Tschinkel, who were the doctor and registered nurse, respectively, working at the Camp at the time, allegedly cared for Jordan at the Camp before taking him to the defendant Wilson Memorial Regional Medical Center (hereinafter Wilson Memorial), in Johnson City, Broome County, New York, in the vicinity of the Camp. While at Wilson Memorial from August 8, 2007 through August 10, 2007, Jordan allegedly received care and treatment from the defendants Dina Farrell, M.D., Michael Farrell, M.D., Gregory Scagnelli, M.D., Julie Higgins, R.P.A., Patricia Grant, R.N., and [***5] William Kazalski, R.N. Allegedly due to the failure of the defendants to timely recognize and properly care for and treat Jordan’s condition, he sustained various injuries.

[*245] The Instant Action

In November 2007, Jordan and Malka, both as Jordan’s guardian and in her individual capacity, commenced the instant action, inter alia, to recover damages for medical malpractice in the Supreme Court, Nassau County, against, among others, the Camp, Wilson Memorial, “Randy ‘Doe,’ M.D.,” ” ‘Jane Doe’ R.N.,” Dina Farrell, and Michael Farrell. Thereafter, the plaintiffs amended their complaint to substitute Wysoki for the defendant Randy “Doe,” and to add Scagnelli as a defendant.

After joinder of issue, the Camp moved, inter alia, to dismiss the complaint insofar as asserted against it pursuant to CPLR 3211 (a) (1) and 501 based on the forum selection clause in the Camp Contract.

The plaintiffs moved for leave to serve an amended summons and complaint to add Higgins and Jill Tschinkel, R.N., as defendants.

The defendants Grant, Kazalski, and Wilson Memorial jointly cross-moved to change the venue of the action from Nassau County to Broome County pursuant to CPLR 510 and 511 (a) on the grounds that the defendants [***6] Grant, Kazalski, Dina Farrell, Michael Farrell, Scagnelli, and Higgins worked and/or resided in, or within approximately 10 minutes of, Broome County, and also because Wilson Memorial was located in Broome County.

The defendants Wysoki, Dina Farrell, Michael Farrell, and Scagnelli (hereinafter collectively the doctor defendants) jointly cross-moved, inter alia, to dismiss the complaint insofar as asserted against them pursuant to CPLR 3211 (a) (1) and 501 based on the forum selection clause in the Camp Contract. The doctor defendants observed that, pursuant to the last paragraph of the Camp Contract, Malka represented that she had the authority to bind Jordan to the Camp Contract. The doctor defendants further pointed out that the Camp Contract “outlined the terms and conditions of [Jordan’s] attendance at the Camp, including any necessary medical care and treatment or care and treatment decisions for [Jordan].” In that regard, according to the doctor defendants, “as all the parties to the instant action either provided care and treatment to [Jordan] at the Camp or at [Wilson Memorial] based on the Camp’s decision as to what care and treatment [Jordan] needed to receive, any litigation [***7] between the parties in this matter is subject to the terms and conditions of the [Camp Contract].”

[*246] Specifically, the doctor defendants argued that Wysoki was covered by the Camp Contract because she “was the physician working at the Camp who sent [Jordan] to [Wilson Memorial]” and thus “is part of this lawsuit through her work at [**53] the Camp.” The doctor defendants further argued that Dina Farrell, Michael Farrell, and Scagnelli were covered by the Camp Contract because they “treated [Jordan] at [Wilson Memorial] pursuant to the Camp’s decision as ‘in loco parentis’ and with the authority granted to the Camp . . . to have [Jordan] treated at a hospital” and thus “became involved in the care and treatment of [Jordan] based on the decision made of the Camp to take [Jordan] to [Wilson Memorial].”

The doctor defendants also argued that the Camp Contract contained a prima facie valid forum selection clause that should be enforced “absent a strong showing that it should be set aside.” The doctor defendants further argued that the forum selection clause, which by its terms applied to “any dispute that may arise out of this agreement or otherwise between the parties to which the camp or its agents [***8] is a party,” applied to the instant action, since the plaintiffs’ tort claims depended on the existence of the Camp Contract. In that regard, the doctor defendants noted that “there would be no [tort claims] had [Jordan] not been a camper at the Camp during the Summer of 2007,” and that Jordan “would not have been a camper at the Camp without the terms and conditions of the [Camp Contract] being accepted and agreed to by [Malka].” Finally, the doctor defendants “noted that the Courts have held that [HN1] non-parties to an agreement containing a forum selection clause may be entitled to enforce a forum selection clause where the relationship to the signatory is sufficiently close or where the liability of a corporation and an officer is based on the same alleged acts” (citations omitted).

In an order entered June 13, 2008, the Supreme Court, inter alia, denied that branch of the Camp’s motion which was to dismiss the complaint insofar as asserted against it based on the forum selection clause, denied that branch of the doctor defendants’ cross motion which was to dismiss the complaint insofar as asserted against them based on the forum selection clause, and granted the plaintiffs’ motion for [***9] leave to serve an amended summons and complaint (2008 N.Y. Misc. LEXIS, 9483, 2008 NY Slip Op 31711[U]).

The doctor defendants appeal, as limited by their brief, from so much of the foregoing order as denied that branch of their cross motion which was to dismiss the complaint based on the forum selection clause.

[*247] The Camp moved for leave to reargue that branch of its motion which was to dismiss the complaint insofar as asserted against it based on the forum selection clause. The Camp argued that the Supreme Court “blurred the distinctions between [a parent’s] legal ability to bind an infant plaintiff to the terms of a forum selection clause as opposed to a release of liability,” and that, “contrary to a release of liability, the law permits a parent of a minor child who signs a contract with a forum selection clause to bind the minor child to the terms and agreements set forth by the forum selection clause.”

The doctor defendants moved, inter alia, for leave to reargue that branch of their cross motion which was to dismiss the complaint insofar as asserted against them based on the forum selection clause. The doctor defendants argued that the Supreme Court erred in finding that Malka could not bind Jordan to the terms of the Camp Contract, [***10] including the forum selection clause, stating, “[t]he Courts have consistently held that non-signatory infants, who are the subject of and obtain benefit from an agreement signed by the parent, such as a camp enrollment contract, are considered to be third-party beneficiaries for the purpose of enforcing the terms of the contract.” Therefore, according to the doctor defendants, because Jordan “was a [**54] third-party beneficiary of the [Camp Contract] and as the forum selection clause in the [Camp Contract] is valid, the forum selection clause must be found to be applicable to [Jordan’s] claims as well as [Malka’s claims].”

The doctor defendants further argued that the Supreme Court erred in finding “that there was no factual predicate for the foreseeable enforcement [of the forum selection clause in the Camp Contract] by the non-signatory [doctor defendants].” Specifically, noting that the Camp Contract granted authority ” ‘without limitation to the camp/assigns in all medical matters to hospitalize/treat/order injections/anesthesia/surgery for the camper,’ ” the doctor defendants argued that the Camp “contract itself contemplated and provided the factual predicate for the medical treatment [***11] at issue.”

The doctor defendants argued that they “are exactly the ‘assigns’ that were contemplated by the [Camp Contract], as the same sentence in the contract states that the assigns may ‘hospitalize/treat’ [Jordan] and/or ‘order injections/anesthesia/surgery’ for [Jordan].” Thus, according to the doctor defendants, “the [Camp Contract] is the only mechanism by which [they as non-signatories] were able to ‘hospitalize/treat’ [Jordan] [*248] and, thus, the [Camp Contract] is the only mechanism by which there are claims for the non-signatory hospitalization and treatment at issue.”

The doctor defendants further argued that “there was a sufficiently ‘close relationship’ between the signatories to the [Camp Contract] and the non-signatory [doctor] defendants, to reasonably foresee that [the doctor defendants] or noted ‘assigns’ in the contract would seek to enforce the terms of the contract” (emphasis omitted).

Finally, regarding Wysoki in particular, the doctor defendants argued that the Supreme Court erred in finding “that the same acts are not alleged with regard to the claimed liability of the Camp and Dr. Wysoki.”

At some point in time, the plaintiffs served a supplemental summons and a second [***12] amended summons and complaint, inter alia, adding Higgins as a defendant. Higgins moved, inter alia, to dismiss the complaint insofar as asserted against her based on the forum selection clause.

In an order entered September 30, 2008, the Supreme Court, inter alia, granted leave to reargue to both the Camp and the doctor defendants, and, upon reargument, adhered to its original determination denying the respective branches of the Camp’s motion and the doctor defendants’ cross motion which were to dismiss the complaint insofar as asserted against them based on the forum selection clause (2008 N.Y. Misc. LEXIS,10774, 2008 NY Slip Op 33610[U]). The Supreme Court also denied that branch of Higgins’ motion which was to dismiss the complaint insofar as asserted against her based on the forum selection clause.

The doctor defendants appeal from so much of the second order as, upon reargument, adhered to the original determination denying that branch of their cross motion which was to dismiss the complaint based on the forum selection clause, and Higgins jointly appeals from so much of the same order as denied that branch of her motion which was to dismiss the complaint insofar as asserted against her based on the forum selection clause.

Discussion

[HN2] ” ‘A [***13] contractual forum selection clause is prima facie valid and enforceable unless it is shown by the challenging party to be unreasonable, unjust, in contravention of public policy, invalid due to fraud or overreaching, or it is shown that a trial in the [*249] selected forum would be so gravely difficult that the challenging party would, [**55] for all practical purposes, be deprived of its day in court’ ” (Stravalle v Land Cargo, Inc., 39 AD3d 735, 736, 835 NYS2d 606 [2007], quoting LSPA Enter., Inc. v Jani-King of N.Y., Inc., 31 AD3d 394, 395, 817 NYS2d 657 [2006]; see Harry Casper, Inc. v Pines Assoc., L.P., 53 AD3d 764, 765, 861 NYS2d 820 [2008]; Fleet Capital Leasing/Global Vendor Fin. v Angiuli Motors, Inc., 15 AD3d 535, 790 NYS2d 684 [2005]).

[HN3] ” ‘Absent a strong showing that it should be set aside, a forum selection agreement will control’ ” (Horton v Concerns of Police Survivors, Inc., 62 AD3d 836, 836, 878 NYS2d 793 [2009], quoting Di Ruocco v Flamingo Beach Hotel & Casino, 163 AD2d 270, 272, 557 NYS2d 140 [1990]).

The Forum Selection Clause Is Prima Facie Valid and Enforceable

In Horton v Concerns of Police Survivors, Inc. (62 AD3d 836-837, 878 NYS2d 793 [2009]), considering a forum selection clause under similar circumstances, we concluded,

“Here, the plaintiff failed to make the requisite ‘strong showing’ that the forum selection clause in her employment [***14] agreement, which requires disputes to be decided in the courts of the State of Missouri, should be set aside. Although the plaintiff averred that she is a single mother who resides with her teenaged daughter in Dutchess County, New York, this claim was insufficient, standing alone, to demonstrate that enforcement of the forum selection clause would be unjust. The plaintiff offered no evidence that the cost of commencing a wrongful discharge action in Missouri would be so financially prohibitive that, for all practical purposes, she would be deprived of her day in court. Moreover, the plaintiff did not allege that the inclusion of a forum selection clause in her employment contract was the product of overreaching, and she did not demonstrate that the clause is unconscionable.” (Citations omitted.)

[1] Similarly, here, the plaintiffs failed to demonstrate that the forum selection clause is unreasonable or unjust, or that a trial in Wayne County, Pennsylvania, would be so gravely difficult that, for all practical purposes, they would be deprived of their day in court. Moreover, the plaintiffs failed to allege, let [*250] alone demonstrate, that the forum selection clause was the [***15] result of fraud or overreaching. Under these circumstances, the plaintiffs failed to make any showing, let alone a strong showing, that the forum selection clause should be set aside on such bases (id.; see Trump v Deutsche Bank Trust Co. Ams., 65 AD3d 1329, 1331-1332, 887 NYS2d 121 [2009]; compare Yoshida v PC Tech U.S.A. & You-Ri, Inc., 22 AD3d 373, 803 NYS2d 48 [2005] [the Supreme Court properly declined to enforce a contractual forum selection clause fixing Tokyo as the forum for any litigation between the parties, since the plaintiff made “a strong showing that a trial in Tokyo would be so impracticable and inconvenient that she would be deprived of her day in court”]).

The Forum Selection Clause Applies to this Action

[2] Further, the forum selection clause applies to the instant tort action. Notwithstanding the placement of the forum selection clause in the sixth paragraph of the Camp Contract, which otherwise pertains to fees, tuition, and refund policies, the applicability of the forum selection clause does not turn on the type or nature of the dispute between the parties. Rather, by its express language, the forum selection clause applies to “any dispute that may arise out of this agreement or otherwise between the [***16] parties to which the camp or its agents is a party” (see [**56] Tourtellot v Harza Architects, Engrs. & Constr. Mgrs., 55 AD3d 1096, 1097-1098, 866 NYS2d 793 [2008] [rejecting the defendant’s claim that the subject forum selection clause in its agreement with the third-party defendant ” ‘was never intended to apply to third-party claims in personal injury and products liability actions such as . . . plaintiff’s action here,’ (since) under its broad and unequivocal terms, the applicability of the subject forum selection clause does not turn on the type or nature of the dispute between them; rather, it applies to ‘any dispute arising under or in connection with’ their agreement”]; see also Buhler v French Woods Festival of Performing Arts, 154 AD2d 303, 304, 546 NYS2d 591 [1989] [in a personal injury action to recover damages for negligence, the plaintiffs were bound by a forum selection clause in a camp enrollment contract which provided that “(t)he venue of any dispute that may arise out of this agreement or otherwise between the parties to which the camp or its agents is a party shall be either the Village of Hancock, N.Y. Justice Court or the County or State Supreme Court in Delaware County”]).

Jurisdiction and Venue

[3] Moreover, the forum [***17] selection clause is enforceable as a general matter even though it does not include any language [*251] expressly providing that the plaintiffs and the Camp intended to grant exclusive jurisdiction to Pennsylvania. The forum selection clause relates to both jurisdiction and venue, and employs mandatory venue language, providing that the venue of any dispute arising out of the agreement or otherwise between the parties “shall be either the local District Justice Court or the Court of Common Pleas, Wayne County, Pennsylvania.” Accordingly, since the forum selection clause addresses jurisdiction and contains mandatory venue language, the clause fixing venue is enforceable (see Fear & Fear, Inc. v N.I.I. Brokerage, L.L.C., 50 AD3d 185, 187, 851 NYS2d 311 [2008]; John Boutari & Son, Wines & Spirits, S.A. v Attiki Importers & Distribs. Inc., 22 F3d 51, 52 [1994]).

Enforceability of Forum Selection Clause by Nonsignatories

Notwithstanding the fact that the forum selection clause is prima facie valid and enforceable and applicable to the instant tort action as a general matter, this Court must further determine whether the defendant doctors and Higgins, who are not signatories to the Camp Contract, may enforce the forum selection clause.

[HN4] As [***18] a general rule, “only parties in privity of contract may enforce terms of the contract such as a forum selection clause found within the agreement” (Freeford Ltd. v Pendleton, 53 AD3d 32, 38, 857 NYS2d 62 [2008]; see ComJet Aviation Mgt. v Aviation Invs. Holdings, 303 AD2d 272, 758 NYS2d 607 [2003]). However,

[HN5] “there are three sets of circumstances under which a non-party may invoke a forum selection clause: First, it is well settled that an entity or individual that is a third-party beneficiary of the agreement may enforce a forum selection clause found within the agreement. Second, parties to a ‘global transaction’ who are not signatories to a specific agreement within that transaction may nonetheless benefit from a forum selection clause contained in such agreement if the agreements are executed at the same time, by the same parties or for the same purpose. Third, a nonparty that is ‘closely related’ to one of the signatories can enforce a forum selection clause. The relationship between the nonparty and the signatory in such cases must be sufficiently close so that enforcement of the clause is foreseeable by [**57] virtue of the relationship between them.” (Freeford Ltd. v Pendleton, 53 AD3d at 38-39 [citations [*252] omitted]; see Direct Mail Prod. Servs. v MBNA Corp., 2000 US Dist LEXIS 12945, *8, 2000 WL 1277597,*3 [SD NY 2000]; [***19] cf. EPIX Holding Corp. v Marsh & McLennan Cos., Inc., 410 NJ Super 453, 463, 982 A2d 1194, 1200 [2009] [“It is clear that in certain situations, a non-signatory to an arbitration agreement may compel a signatory to arbitrate. Since arbitration agreements are analyzed under traditional principles of state law, such principles allow a contract to be enforced by or against nonparties to the contract through assumption, piercing the corporate veil, alter ego, incorporation by reference, third-party beneficiary theories, waiver and estoppel” (citations and internal quotation marks omitted)].)

[4] Here, relying on the provision in the Camp Contract by which the plaintiffs granted authority to the Camp and to its “assigns” in all medical matters, inter alia, to hospitalize and treat Jordan, Dina Farrell, Michael Farrell, Scagnelli, and Higgins claim to have a sufficiently close relationship with the Camp such that enforcement of the forum selection clause by them was foreseeable to the plaintiffs by virtue of that relationship. Significantly, however, there is nothing in the Camp Contract indicating that the Camp intended to use Dina Farrell, Michael Farrell, Scagnelli, and Higgins in particular in [***20] the event Jordan required “off-camp” medical services. In fact, there is nothing in the Camp Contract indicating that the Camp intended to use Wilson Memorial–located in a different state from the Camp–and its physicians and physician assistants in the event Jordan required medical services.

Under these circumstances, Dina Farrell, Michael Farrell, Scagnelli, and Higgins do not have a sufficiently close relationship with the Camp such that enforcement of the forum selection clause by them was foreseeable to the plaintiffs by virtue of that relationship (cf. Freeford Ltd. v Pendleton, 53 AD3d at 40-41 [“Even a cursory examination of these two agreements makes clear that (defendants) Lane Pendleton and Cairnwood Management had every reason to foresee that (plaintiff) Freeford would seek to enforce the forum selection clause against them”]; Dogmoch Intl. Corp. v Dresdner Bank, 304 AD2d 396, 397, 757 NYS2d 557 [2003] [“(a)lthough defendant was a nonsignatory to the account agreements, it was reasonably foreseeable that it would seek to enforce the forum selection clause given the close relationship between itself and its (signatory) subsidiary”]; Direct [*253] Mail Prod. Servs. v MBNA Corp., 2000 US Dist LEXIS 12945, *10-14, 2000 WL 1277597, *4-5 [***21] [where “a number of . . . clauses in the Agreement between (plaintiff) Direct Mail and (nonparty) MBNA Direct indicate that the signatories intended the contract to benefit related (nonsignatory defendant) MBNA companies,” MBNA Corporation and MBNA America Bank, N.A., were sufficiently closely related to MBNA Direct such that it was foreseeable that they would seek to enforce a forum selection clause contained in the subject agreement]).

[5] Conversely, however, we conclude that Wysoki, as an employee of the Camp, is entitled to enforce the forum selection clause despite her status as a nonsignatory to the Camp Contract. The forum selection clause itself applies to “any dispute that may arise out of this agreement or otherwise between the parties to which the camp or its agents is a party” (emphasis added). Moreover, we find that the [**58] Camp’s relationship with Wysoki, its on-site medical employee, was “sufficiently close so that enforcement of the clause [was] foreseeable by virtue of the relationship between them” (Freeford Ltd. v Pendleton, 53 AD3d at 39). Thus, Wysoki, despite being a nonsignatory to the Camp Contract, was entitled to enforce the valid forum selection clause. Accordingly, [***22] the Supreme Court should have granted that branch of the doctor defendants’ cross motion which was to dismiss the complaint insofar as asserted against Wysoki based on the forum selection clause.

Conclusion

The Supreme Court properly denied that branch of Higgins’ motion which was to dismiss the complaint insofar as asserted against her pursuant to CPLR 3211 (a) (1) and 501 based on the forum selection clause. However, the Supreme Court improperly, upon reargument, adhered to its prior determination denying that branch of the doctor defendants’ cross motion which was to dismiss the complaint insofar as asserted against Wysoki pursuant to CPLR 3211 (a) (1) and 501 based on the forum selection clause.

Accordingly, the appeal from the order entered June 13, 2008 is dismissed, as that order was superseded by the order entered September 30, 2008, made upon reargument. The order entered September 30, 2008 is modified, on the law, by deleting the provision thereof, upon reargument, adhering to the determination in the order entered June 13, 2008, denying that branch of the doctor defendants’ cross motion which was to dismiss the complaint insofar as asserted against Wysoki pursuant to CPLR 3211 (a) (1) [***23] and 501 based on the forum selection clause and substituting therefor a provision, upon reargument, vacating the determination in the order entered June 13, 2008 denying that branch of the doctor defendants’ cross motion which was to dismiss the complaint [*254] insofar as asserted against Wysoki pursuant to CPLR 3211 (a) (1) and 501 based on the forum selection clause and thereupon granting that branch of the cross motion. As so modified, the order entered September 30, 2008 is affirmed insofar as appealed from.

Rivera, J.P., Miller and Roman, JJ., concur.

Ordered that the appeal from the order entered June 13, 2008 is dismissed, without costs or disbursements, as that order was superseded by the order entered September 30, 2008, made upon reargument; and it is further,

Ordered that the order entered September 30, 2008 is modified, on the law, by deleting the provision thereof, upon reargument, adhering to the determination in the order entered June 13, 2008, denying that branch of the cross motion of the defendants Randee Wysoki, Dina Farrell, Michael Farrell, and Gregory Scagnelli which was to dismiss the complaint insofar as asserted against Randee Wysoki pursuant to CPLR 3211 (a) (1) and [***24] 501 based on a forum selection clause and substituting therefor a provision, upon reargument, vacating the determination in the order entered June 13, 2008, denying that branch of the cross motion of the defendants Randee Wysoki, Dina Farrell, Michael Farrell, and Gregory Scagnelli which was to dismiss the complaint insofar as asserted against Randee Wysoki pursuant to CPLR 3211 (a) (1) and 501 based on a forum selection clause and thereupon granting that branch of the cross motion; as so modified, the order entered September 30, 2008, is affirmed insofar as appealed from, without costs or disbursements.