Whalen v. Vic Tanny Hicksville, Inc. , 258 N.Y.S.2d 562 ( 1965 )

In a negligence action to recover damages for personal injury and loss of services, the defendants appeal from an order of the Supreme Court, Nassau County, entered April 22, 1963, which granted plaintiffs’ motion to dismiss as legally insufficient the defense pleaded by defendants in paragraph “ Thirteenth ” of their answer to the amended complaint. Order reversed, without costs, and motion denied. In our opinion, the defense which alleges in effect that, in pursuance of paragraph " 5 ” of the membership contract, the defendants are immune from liability for the injury alleged to have been caused by defendants’ negligence, is valid on its face as a covenant not to sue (Butzer v. Vie-Tanny-Flatbush, 20 A D 2d 821; cf. Giofalo v. Vie Tanny Gyms, 10 N Y 2d 294). Beldoek, P. J., Ughetta, Christ, Brennan and Hopkins, JJ., concur.