Foul on the Defense – Basketball Rec League Waiver Void Under New York Statute (NY)

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(photo by Dave Lindblom; unchanged)

Falzone v. City of New York (New York)

Plaintiff paid a fee to register to play in a recreation basketball league.  The league then paid the defendant New York City Department of Eduction a portion of the league registration fees for a permit in order to use a public school gymnasium.  During a game at the facility, the plaintiff was injured when his hand went through the glass window of a door that was behind one of the basketball hoops.  Plaintiff then filed an action against the City of New York and the Department of Education.  After initially responding, the defendant filed a motion for leave to amend their answer to add the affirmative defense of release and filed a motion to dismiss the complaint.  The trial court granted both motions and the plaintiff appealed.

On appeal, the Appellate Division of the Supreme Court determined that the trial court had properly granted the City of New York’s motion to dismiss in that it did not operate, maintain, or control the school premises.  As to the motion by the Department of Eduction to add the affirmative defense of release, the Court reversed the decision.  the Court explained that “[a]lthough leave to amend a pleading should be freely given [citation omitted], a court should deny a motion for leave to amend if the proposed amendment is palpably insufficient, would prejudice or surprise the opposing party, or is patently devoid of merit.”  The Court noted that the proposed amendment regarding the affirmative defense of release was “devoid of merit.”  The plaintiff had signed a “Player Waiver, Release of Liability and Indemnification Agreement” prior to his participation in the basketball league, but he paid a league fee to use the gymnasium and the payment of the fee rendered the waiver and release agreement void pursuant to New York General Obligations Law Section 5-326.  Under Section 5-326, every agreement in connection with a place of recreation in which the owner or operator receives a fee for the use of such facilities that exempts the owner or operator from liability for damages resulting from the negligence of the owner or operator is deemed void as against public policy and wholly unenforceable.

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