Scott v. Niagara Scuba Sports, Inc.

155 A.D.2d 864

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: November 15, 1989
• Status: Published

Opinion

Order unanimously modified on the law and as modified affirmed without costs, in accordance with the following memorandum: Supreme Court erred in granting defendants’ summary judgment motion and dismissing plaintiff’s claims arising out of decedent’s death while engaged in scuba-diving activity under defendants’ direction. The release that decedent signed as a precondition for his enrollment in the scuba-diving course and upon which Supreme Court relied is ambiguous and does not express in unmistakable language the intention of the parties (see, Gross v Sweet, 49 NY2d 102, 107-110; Abramowitz v New York Univ. Dental Center, 110 AD2d 343). Moreover, pretrial deposition testimony reveals that there are questions whether decedent was fully advised of the potential dangers of engaging in the activity. Supreme Court properly denied defendants summary judgment on claims arising out of the sale of scuba-diving equipment. (Appeals from order of Supreme Court, Erie County, Rath, J. — summary judgment.) Present — Dillon, P. J., Denman, Boomer, Green and Davis, JJ.