Recreation Summer Camp Waiver
GERALD A. VERGILIS*
KENNETH M. STENGER
ALBERT P. ROBERTS
THOMAS R. DAVIS
LOUIS J. VIGLOTTI
JOAN F. GARRETT**
VERGILIS, STENGER, ROBER'fS & DAVIS, LLP
ATTORNEYS AND COUNSELORS AT LAW
1136 ROUTE 9
WAPPINGERS FALLS, NEW YORK 12590
(845) 298-2000
LEGAL ASSISTANT:
AMY E. DECARLO
FAX (845) 298-2842
CLOSING COORDINATOR:
SUSAN E. CAFFINE
WWW.Ysrp.com
e-mail: info@ysrp.com
POUGHKEEPSIE OFFICE
276 MAIN MALL
POUGHKEEPSiE, NY 12601
(845) 452-1046
KAREN P. Mac NISH
KEVIN T. McDERMOTT
ANGEL l. FALCON
ANTHONY M. DEFAZIO
JAMES P. HORAN
'ADMITTED TO PRACTICE
IN NY & FLA.
NEWBURGH OFFICE
299 N. PLANK ROAD, SUITE 106
NEWBURGH, NY 12550
(845) 567-3783
H ADMITTED TO PRACTICE
IN NY & CONN.
February 20, 2007
Town of Wappinger
Attention: Gina Basile
20 Middlebush Road
Wappingers Falls, New York 12590
Re: Town of Wappinger Recreation Department
Camp Registration Parent Waiver
FileNo. 12951.0301
Dear Gina:
I am sorry it has taken longer than expected to review the Parent Waiver, however, when you
asked my firm to review the legality of a document as important as this, we had to do some basic
research. In addition, I circulated the draft of the revised Release to my partners.
In summary, it is questionable whether the Release is valid at all. While I recognize other
communities have a similar form, there are provisions of the General Obligations Law which
render Waivers void as a matter of public policy. See attached memorandum from Joan Garrett to
me.
I basically re-constructed the Waiver utilizing thc pertinent provisions from each document.
Notwithstanding the parent's signature to the document, I do not believe such a waiver is
enforceable with regard to any claim that an infant child (under the age of 18 years) may have.
Please have Ralph Holt review the document and contact me for any further information. The
Recreation Department should also consider asking the parent if the child has any allergies,
medical conditions, issues or disabilities.
Very truly yours,
VERGILIS, STENGER, ROBERTS & DAVIS, LLP
ALBER~<?"ERTS
APRlso
Enc!.
0:\ Wappinger\Town Board\Recreation\Camp Registration\022007 letter of transmittal to Gina.doc
CAMP REGISTRATION PARENT/GUARDIAN WAIVER
I hereby give my permission to allow my son/daughter to attend
and participate in under the sponsorship of the Town
of Wappinger Recreation Department. I further recognize the risk of illness and injury inherent in
participating in any recreational activities, including, but not limited to, sports, exercise, fitness or
aerobics programs, swimming activities and summer camp programs and transportation
programs. I hereby allow my child to participate in said activity upon the express agreement and
understanding that I, as parent and/or natural guardian of said child hereby waive and release, for
myself, my child, and/or my heirs, executors and administrators any and all rights or claims for
damages I and/or my child may have against the Town of Wappinger, or the Town Recreation
Department, or the property owner the property where such activities occur, their officers,
directors, agents, subsidiaries, employees, representatives, successor and assigns for any and all
injuries suffered by my child during my child's participation in these programs and/or activities,
except for the gross negligence or willful misconduct of the employees or agents of the Town of
Wappinger.
I understand that the Town of Wappinger does not provide accidental medical coverage insurance
and I agree to provide my own medical insurance coverage or pay for such costs in the event of
injury resulting from participation in such activities.
I hereby gIve permIssIOn to the Town of Wappinger Recreation Department or their duly
designated agent to administer emergency medical care to my child in my absence in the event of
InJury.
I hereby execute and deliver this Waiver and Release to induce the Town of Wappinger
Recreation Department, its officers, agents, employees and representatives to allow my child to
participate in the activities or programs above named.
Medical Information:
Parent/Guardian
Signature
Date:
Emergency Phone Number:
O:\Wappinger\Town Board\Recreation\Camp Registration\CAMP REGISTRATION PARENT- GUARDIAN WAIVER.doc
.
MEMO
To:
From:
Date:
RE:
APR
Joan
February 20, 2007
Camp Registration Waiver- Town of Wappinger
Jerry reviewed the Waiver and brought up a good point regarding General Obligations
Law GOL-95-326 which states as follows:
~S-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 cases interpreting this GaL section seem to differentiate between places of
instruction and places of recreation. In situations regarding recreational facilities wherein
a person pays a fee to use the facilities, cases hold that any type of purported Waiver of
Liability is void as against public policy. However in places which are mainly
instructional in nature, such as same horseback riding facilities, the Waiver is not void
Following are instances which the Courts have held that the Waiver was not void against
public policy.
1. Where a member of a softball team was injured on a softball field where
only the team itself paid for use of the Town softball field and not the individual softball
player- see Stuhlweissenburg v. Town of Orange Town (636 N YS2d 853);
2. Hairstyling salon- Ward v. Dunn (519 N YS 2d 306);
3. Where a person buys a paragliding unit and takes lessons at the same time-
Chieco v. Paramarketing, Inc. (643 N YS 2d 668);
4. Where a participant in a contest sponsored by the State and Medical
Association: the waiver was not void since there was no fee paid -Long v. State 551
N YS2d 369;
1
In assessing whether a facility is instructional or recreational, Courts examine the
facilities name and Certificate of Incorporation and Statement of Purpose and whether the
money it charges is tuition or fees for use of the facility. See Appelbaum v. Golden
Acres Farm & Ranch (333 F. Supp. 2d 31); Fusco v. Now & Then, Inc. (742 N Ys. 2d
650);
An argument may be able to be made that the payment of the fee to the Town of
Wappinger is for instructional use as camp participants as opposed to payment for use of
facilities so that the Waiver would not be void under this provision. However, the law is
not clear and I could find no case regarding Town Camp.
O:\Wappinger\Town Board\Recreation\Camp Registration\022007-Memo to APR from JFG re Waiver.doc
2
.-
Westlaw
223 A.D.2d 633
223 A.D.2d 633, 636 N.Y.S.2d 853
(Cite as: 223 A.D.2d 633)
l>
Stuhlweissenburg v. Town of OrangetownN.Y.A.D.
2 Dept., 1996.
Supreme Court, Appellate Division, Second
Department, New York.
Deborah STUHL WEISSENBURG, Appellant,
v.
TOWN OF ORANGETOWN, et aI., Respondents.
Jan. 22, 1996.
Member of softball team brought action against
town to recover for injury sustained in game on
town's softball field. The Supreme Court,
Rockland County, Miller, J., granted town's motion
for summary judgment, and appeal was taken. The
Supreme Court, Appellate Division, held that
~ waiver of liability executed by team member was
. not void as against public policy embodied in
general obligations law absent any indication that
... team member, as opposed to team itself, paid fee for
/ .a~mission to or use of town's facility.
()" r...x.-
~ / )"'Affirmed.
(, j West Headnotes
fjJ ,\Y III Public Amusement and Entertainment 31ST
. JJ C=131
UJ 31 5T Public Amusement and Entertainment
3 15TIII Personal Injuries
315TIII(B) Defenses, Mitigating
Circumstances and Statutory Limitations of Liability
315Tk 129 Pre-Injury Releases
315Tk 131 k. Operation and Effect of
Statutory Provisions. Most Cited Cases
(Formerly 376k6(6) Theaters and Shows)
Waiver of liability executed by member of softball
team was not void as against public policy
embodied in general obligations law so as to
preclude town from asserting it as affirmative
defense in personal injury action, absent any
evidence that team member, as opposed to team
itself, paid fee for admission to or use of town's
softball field. McKinney's General Obligations
Law ~ 5-326.
Page 2 of 3
Page 1
12) Public Amusement and Entertainment 31ST
€=131
315T Public Amusement and Entertainment
315TIII Personal Injuries
315TIII(B) Defenses, Mitigating
Circumstances and Statutory Limitations of Liability
315Tk 129 Pre-Injury Releases
315Tk 131 k. Operation and Effect of
Statutory Provisions. Most Cited Cases
(Formerly 376k6(6) Theaters and Shows)
To void release of liability executed by user of
recreational facility pursuant to general obligations
law, individual must have paid fee for use of
facility. McKinney's General Obligations Law ~
5-326.
**853 Robert Cherofsky, New York City, for
appellant.
Before MANGANO, P.l, and MILLER,
SANTUCCI and HART, JJ.
*633 MEMORANDUM BY THE COURT.
In an action to recover damages for personal
injuries, the plaintiff appeals from (I) an order of
the Supreme Court, Rockland County (Miller, J.),
dated June 7, 1994, which granted the motion of the
defendant Town of Orangetown for summary
judgment dismissing the complaint insofar as
asserted against it, and denied the plaintiffs cross
motion to dismiss the fifth affirmative defense, and
(2) a judgment of the same court, entered June 27,
1994, which dismissed the complaint insofar as it
was asserted against the Town of Orange town.
ORDERED that the appeal from the order is
dismissed, without costs or disbursements; and it is
further,
ORDERED that the judgment is affirmed, without
costs or disbursements.
~ 2007 Thomson/West. No Claim to Orig. U.S. Govt. Works.
The appeal from the intermediate order must be
https://web2. westlaw.com/print/printstream.aspx?utid=% 7b565D467F -322B-45DO-A9F A-... 2/15/2007
.
223 AD.2d 633
223 AD.2d 633, 636 N.Y.S.2d 853
(Cite as: 223 A.D.2d 633)
dismissed because the right of direct appeal
therefrom terminated with the entry of judgment in
the action (see, Matter of Aho, 39 N.Y.2d 241,248,
383 NY.S.2d 285, 347 N.E.2d 647). The issues
raised on appeal from the order are brought up for
review and have been considered on the appeal
from the judgment (see, CPLR 550] [a)[I) ).
*634 The plaintiff commenced this action as a
result of injuries she sustained when she slid into
third base while playing softball at Veterans Field in
Orangeburg. The plaintiff was a member of a
softball team known as the White Knights. The
sponsor of her team allegedly paid a $400 fee to the
Town of Orangetown.
[I) After interposing an answer, the Town moved to
amend the answer to assert the affirmative defense
of the plaintiffs execution of a waiver of liability.
The plaintiff opposed the motion, contending that
pursuant to General Obligations Law ~ 5-326, any
waiver of liability was void as against public policy.
The court granted the Town's motion, noting that
while it is undisputed that the sponsor of the
plaintiffs softball team paid a fee to the Town,
without which the team would not have been
allowed to use the Town's softball field in league
competition, there was no proof whatsoever that the
plaintiff paid a fee. We agree.
Genera] Obligations Law 9 5-326, a consumer
protection measure (L.1976, Ch. 414, ~ ]);
provides, in part, that:
"Every * * * agreement * * * in connection with, or
collateral to, any * * * ticket of admission * * *
entered into between the owner or operator of any *
* * 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. "
Page 3 of 3
Page 2
(2) To void a release of liability executed by a user
of a recreational facility pursuant to General
Obligations Law ~ 5-326, the individual must have
paid a fee for use of the facility (see, Stone v.
Bridgehampton Race Circuit, 217 A.D.2d 541, 629
N.Y.S.2d 80; Miranda v. Hampton Auto Raceway,
] 30 A.D.2d 558, 515 N. Y.S.2d 291; Lago v.
Krollage, 78 N.Y.2d 95, 100, 571 N.Y.S.2d 689,
575 N.E.2d ]07 [membership fee paid by plaintiff
four months prior to race was not "fee or other
compensation for the use of [any) such facilit[y)"
within meaning of statute); Beardslee v. Blomberg,
70 A.D.2d 732, 416 N.Y.S.2d 855 [statute not
app]icable by its terms insofar as the release
executed by injured party was neither "in [n]or in
connection with, or collateral to" the plaintiffs
admission ticket) ).
Here, the plaintiff has failed to produce any
evidence that she paid a fee for admission to, or use
of, the Town's softball field. Accordingly, General
Obligations Law S 5-326 does not *635 void the
release executed by the plaintiff prior to
participating in her softball game.
Accordingly, as a matter of law, the plaintiffs
waiver of liability was not "void as **855 against
public policy and wholly unenforceable" pursuant
to General Obligations Law S 5-326.
N.Y.A.D. 2 Dept.,1996.
Stuhlweissenburg v. Town of Orangetown
223 A.D.2d 633, 636 N.Y.S.2d 853
END OF DOCUMENT
(Q 2007 Thomson/West. No Claim to Orig. U.S. Govt. Works.
https://web2. westlaw.com/print/printstream.aspx?utid=% 7b565D46 7F -322B-45 DO-A9F A-... 2/15/2007
Camp Plaveround Reeistration Al!Plication
Read complete instructions on reverse side before completing this form.
Mail in option is Onlv available for those children returnine: from last year
*Extended Hours only Available at Martz Field and Spook Hill
Camp Attending: (Circle one): Castle Point, Martz Field*, Quiet Acres, Spook Hil1*
Times Attending: (Check one): Regular Hours (9am - 3pm) Cost: $100.00
(cost is for 7 week program) *Extended Hours (8am - 4pm) Cost: $150.00
Child's Name:
Last,
Address:
No. Street
School Attending:
Mother's Name:
Mother's Home #:
Mother's work #:
Mother's Cell #:
D.O.B:
Age:
First
Home #:
Town
State zip code
Grade:
Father's Name:
Father's Home #:
Father's work #:
Father's Cell #:
In the event of an emergency and neither parent can be reached please list 2 local emergency
contacts:
Name:
Relationship:
Phone #:
Address:
Cell#
Name:
Relationship:
Phone #:
Address:
Cell#
Medical Information: Please check and list specifics.
Allergies
Asthma
Convulsions
Bleeding/clotting disorders
Behavioral Problems
Operations or serious Injuries:
Disability or chronic illness:
Name of Family Physician:
Heart Disease/Defect
Diabetes
Hypertension
Drug Allergies
Other
Phone:
Participant Release Waiver:
I give my son/daughter permission to attend and participate in activities under the sponsorship of the Town of
Wappinger Recreation Department. I agree that the Town will not be held responsible for injuries that may
occur during hislher stay. The person enrolled herewith is in good health and has no medical problems, other
than stated which affect hislher ability to safely participate in the programs. In the event that I cannot be
reached in an emergency, I authorize the Town of Wappinger to attend to any health problems or injury which
might occur while attending or participating in Town activities. I also give the Town of Wappinger staff
permission to take individual group pictures of my child (named above) for the use of promotional materials. It
is my responsibility to provide transportation to and from the point of activity.
Parent/Guardian Signature
Date
Parent/Guardian Printed Name
Camp Playground Application Instructions
Please read thorOu2hlv BEFORE filling out the Application
1. Please fill out the application completely including ALL EMERGENCY
INFORMATION. Incomplete forms will not be accepted. Please note that for your
convenience the camp playground program now offers extended hours for an additional
fee.
2. Applications for those children returning from LAST YEAR ONLY MAY MAIL in
your application with the following information included:-
3.
A. One completed application for EACH CHILD being registered.
B. Photocopies of parent's Driver's License and a Utility Bill (electric, phone, cable, oil,
sanitation) to validate residency. (These documents will NOT be returned)
C. A check made out to The Town of Wappinger and mailed to:
Town of Wappinger Recreation
20 Middlebush Road
Wappingers Falls, NY 12590
4. All NEW or returnine: applicants from prior to 2006 or earlier (not last year) may
fill out the form on the reverse side but must register in person during our Open
Registration. Children attending must have completed 1 year of Kindergarten, and
must be a Town of Wappinger Resident (No Exceptions). Only parents/guardians will
be allowed to register their children.
OPEN REGISTRATION DATES:
Friday May 4 7:00pm-9:00pm
Saturday May 5 9:30am-llam
Friday June 1 7:00pm-9:00pm
Saturday June 2 9:30am-II :OOam
Friday June 23 7:00pm-8:00pm (Last Date)
(All take place at Town Hall)
OPEN Registration Information
This registration is available for those not eligible for mail-in registration. The dates for this
registration are listed above. These are the only dates and times that you may register. We will not
accept walk-in registrations.
Upon entering Town of Wappinger Town Hall, your residency will be checked. Please bring two
forms ofI.D. including a driver's license and a utility bill (electric, phone, cable, oil,
sanitation,etc.) and a copy of your child's birth certificate.
There are two rooms for registration:
1. Senior Citizen Room: (in the front entrance-left down the hall way-last room on right):
This room is for Swim Lessons & Camp Playground programs ONLY . Available
FOR TOWN OF WAPPINGER RESIDENTS ONLY.
2. Main Meeting Room: (in front entrance, turn right, first right) All other summer
programs:
Carnwath Farms Fishing Basketball Golf Tennis Reese Park
NO Mail-In Applications accepted for these programs. Limited Registration-Spaces are
first come, first served. You will need to fill out a registration form and a check for each
activity. Some checks get made out to the instructor. See program guide for specifics.
2/07
FEB-21-2007 WED 03:52 PM VSR&P LLC
FAX NO. 845 298 2842
I I
p, 03/03
I
i
!
. I
CAMP REGISTRATION PARENTl( lrARDJAN WAIVER
I hereby give my ponnission to allow my son/daughter to attend
and participate in ! under the sponsorship of the Town
I
of Wappinger Recreation Department. r further recogni~e he risk of illness and injury inherent in
participating ill any recreational activities, including, but I t limited to, sports, exercise, fitness or
aorobics programs, SWimming activities and sUnllTler camp programs and transportation
programs. I hereby allow my child to participate in sa.id ~ tivity UpOn the express agreement and
understanding that r, as parent and/or natural guardian dr aid child hereby waive and release, for
myself. my child, alld/or my heirs, exocutors and admini rators any and all rights or claims for
damages I andlor my child may have against the TOWl11 . Wappinger, or the TaWil Recreation
Department, Or the property owner t~e property whrr such activities occur, their officers,
directors, agents, subsidiaries, employees, representatives Successor and assigns for any and all
I
injuries suffered by my child during my child's participat . n in these programs andlor activities,
except fOr the gross negligence 01' willfJ,l1 misconduct of tt ~ employees or agent.,; of the TOwn of
Wappinger.
I understand that the Town ofWappingtlr does not provi90 ccidental medical coverage insurance
and I agree to provide my Own medical insLlrance coverag · 01" pay for such costs in the event of
injury resulting from participation in such activities.
J hereby give permission to the Towll of Wappinge)', I ~reation Depaltmeot or their duly
i
designated agent to administer emergency medical care tq , ~ child in my absence in the event of
injury.
J hereby execute and deliver this Waiver and ReleaseD induce the Town of Wappinger
Recreation Department, its officers, agents, employees a~d representatives to allow my child to
participate in the activities Or programs above named.
Medical Information:
Parent/Guardian
Signature _
Date:
Emergency Pho\le Number:
O:\Wqpping~r\TowlI Board\Rtcn;qlion\CamJl Regi~lratiorl\CAMP RrKilSTRAl'lp PAl{ENT. GUARDIAN WAIVBI{,QOC
FEB-21-2007 WED 03:52 PM VSR&P LLC
FAX NO. 845 298 2842
GBRALD A.. VERGILIS*
KBNNHTH M. STEN(IBR
ALBERT r. ROBERTS
THOMAS R. DAVIS
LOLJIS.I. VIGLDTII
JOAN F. GARRE'f.P'"
VERGILIS, ST~NGER, ROBER '8 & DAVIS, LLP
ATTORNEYS AND COUNSr:lLRS XI LAW
1136 ROUTE 9
WAPPIl\iCJERS fALLS, NEW ORK 12590
(845) 298-2000
Fi\X (Rot;) 2\l!l-2R4~
KA.R(iN Po MllC NISH
KRVIN T. MCIJRRMOrr
AN(lEL I. FALCclN
AN'I"HONY M. DI;;FAZlO
JAM8S P. HORAN
www.v'r".~l1m
""mail: illrO.il.vsrr.~1l1ll
"ADMilTEDTO I'MCTIC:1i
IN NY & FLA.
."'^IlMJ'M'l~1J TO PRI\CTlcn
IN NY 01< C(JNN.
February 21,2007
Via Facsimile 297-4558
Town of Wappinger
Attention: Gina Basile
20 Middlebush Road
Wappingers Falls, New York 12590
Re: Camp Registration Parent Wijiver
File No. 12951.0301
Dear Gina:
Attached please find a letter dated Febmary 20, 2007 t ether with
amended Waiver.
p, 01/03
LEGAl. ASSISTAN'r:
AMY Ii. PECAJ{f.O
CLOSING COORDINATOR:
SUSAN E. CAFFINE
POUCil~IKriEPsrE OFFICE
276 MAIN MALL
POUGHl<EEPSIH, NY J2('()1
(845) 452-1 [).<ffi
NEWBlIRG!-1 OFFICE
299 N. I'LANK ROAO, SUI'1'B 106
NEW l'\lIRG!-!, NY 12.~50
(845) 567-37X;l
a copy of the
A memo will foHow.
Thank you.
Very truly yours,
VERG:gJ.S., STENGER. ROBERTS & DAVIS) LLP
.~
DEBBIE BARlNKA
Real. Estate Assistant to Albert P. Roberts
Enc.