Blanc v. Windham Mountain Club, Inc.

— Order, Supreme Court, New York County (I. Rubin, J.), entered September 29, 1982 denying defendant’s motion for summary judgment and granting plaintiffs’ cross motion for partial summary judgment striking the third affirmative defense and the counterclaim against plaintiff William Blanc, is unanimously affirmed, with costs. The by-laws of the club clearly distinguish between members and their families. Plaintiff Paulette Blanc, the injured party, is not a member of the club and is thus not bound by the hold harmless by-law. The by-law provides that each member agrees to hold the club harmless from claims arising out of the use of any of the club’s facilities by such member or his family. Section 5-326 of the General Obligations Law invalidates all agreements in connection with or collateral to any contract, membership application, etc., between the owner or operator of a place of amusement or recreation, and the user of such facilities which exempts the owner or operator from liability for damages caused by negligence of the owner, operator or employees. The provision of the by-laws whereby members of the club agree to hold the club harmless from claims by such member or his family is in essence an agreement to exempt the club from such liability, directly as to injuries to the member and indirectly as to injuries to the member’s family; and the provision is therefore invalidated by section 5-326 of the General Obligations Law. Concur — Kupferman, J. P., Sullivan, Carro, Silverman and Bloom, JJ. [115 Misc 2d 404.]