I.INTRODUCTION

Plaintiff sues to recover for personal injuries sustained April 9, 2004, while operating a motorcycle and receiving instruction in motorcycle operation at defendants' school. Defendants move for summary judgment dismissing the complaint, C.P.L.R. § 3212(b), on the ground that, in an undisputed contract between defendants and plaintiff, he released defendants from liability. For the reasons explained below, the court denies defendants' motion.

Plaintiff claims that defendants were grossly negligent because their employee, David Dylan Lane, instructed plaintiff to use a defective motorcycle after plaintiff had complained about it to Lane. Insofar as defendants' contract insulates defendants from damages caused by their grossly negligent conduct, the contract is unenforceable. Colnaghi, U.S.A. v. Jewelers Protection Servs., 81 NY2d 821, 823 (1993); Sommer v. Federal Signal Corp., 79 NY2d 540, 553-54 (1992); Ninacci Diamond & Jewelry Co. v. Miller Freeman, Inc., 281 AD2d 342 (1st Dep't 2001); Hartford Ins. Co. v. Holmes Protection Group, 250 AD2d 526, 527 (1st Dep't 1998).

II.DEFENDANTS' SECOND SUMMARY JUDGMENT MOTION

In an order dated December 20, 2006, the court (Walker, J.) [*2]denied defendants' prior motion for summary judgment on the ground that it was premature, as plaintiff had not had an opportunity to explore defendants' gross negligence through disclosure. Aff. in Opp'n of Philip V. Aiello, Ex. A; C.P.L.R. § 3212(f). When the court has decided one summary judgment motion by a party, absent newly discovered evidence or other sufficient cause, the court must deny a subsequent summary judgment motion by that party and consider the decision on the initial motion the law of the case. Fielding v. Environmental Resources Mgt. Group, 253 AD2d 713 (1st Dep't 1998); Smith v. Metropolitan Transp. Auth., 226 AD2d 168 (1st Dep't 1996); Beagan v. Manhattanville Nursing Care Center, 176 AD2d 633, 635 (1st Dep't 1991).

The denial of defendants' earlier motion as premature implicitly permits defendants' second motion. Chemical Bank v. Equity Holding Corp., 254 AD2d 56 (1st Dep't 1998). The earlier decision, however, relies on additional grounds for denying defendants' motion. The decision also found that, based on Lane's affidavit, defendants did not present prima facie evidence of their defense and that plaintiff's allegations, regarding Lane's unresponsiveness to plaintiff's complaints and Lane's instructions to plaintiff to continue using a potentially dangerous motorcycle, constituted the gross negligence required to meet plaintiff's burden. Aiello Aff. in Opp'n, Ex. A.

Only in reply do defendants attempt to explain that their second summary judgment motion is occasioned by plaintiff's deposition of Lane after Justice Walker's decision. Even considering this belated explanation, McNair v. Lee, 24 AD3d 159, 160 (1st Dep't 2005); Morris v. Solow Mgt. Corp., 8 AD3d 126, 127 (1st Dep't 2004); Jackson v. Bronx Lebanon Hosp. Ctr., 7 AD3d 356, 357 (1st Dep't 2004); Leeds v. Lenox Hill Hosp., 6 AD3d 232 (1st Dep't 2004), Lane's deposition testimony, as set forth below, does not meaningfully supplement or amplify his prior affidavit. Although Lane does address plaintiff's complaints about the motorcycle, Lane simply denies recollection of any complaints as well as anything related to operation of plaintiff's motorcycle or instruction given to plaintiff. Even if this new evidence formed a sufficient basis for defendants' second summary judgment motion, Kobre v. United Jewish Appeal-Fedn. of Jewish Philanthropies of NY, Inc., 32 AD3d 218, 222 (1st Dep't 2006); Chemical Bank v. Equity Holding Corp., 254 AD2d 56; Boston Concessions Group v. Criterion Ctr. Corp., 250 AD2d 435 (1st Dep't 1998); Smith v. Metropolitan Transp. Auth., 226 AD2d 168, the court nevertheless denies the second motion.

III.RELEASE FROM LIABILITY

Plaintiff, who challenges the enforcement of the exculpatory clause, must plead and prove gross negligence, recklessness, or wilfulness by defendants, here acting through their employees. Midtown Distribs. Corp. v. Mutual Cent. Alarm Servs., Inc., 49 AD3d 346 (1st Dep't 2008); Trump Vil. Section 3 v. New York State Hous. Fin. Agency, 292 AD2d 156, 158 (1st Dep't 2002). Conduct evincing reckless disregard for other persons' rights or approaching intentional wrongdoing constitutes gross negligence. [*3]Colnaghi, U.S.A. v. Jewelers Protection Servs., 81 NY2d at 823-24; Sommer v. Federal Signal Corp., 79 NY2d at 554; Ninacci Diamond & Jewelry Co. v. Miller Freeman, Inc., 281 AD2d 342; Master Craft Jewelry Co. v. Holmes Protection of NY, 277 AD2d 56 (1st Dep't 2000).

Plaintiff testified at his deposition that he complained repeatedly to Lane and another instructor that the motorcycle defendants provided plaintiff was not shifting into second gear, thus causing him to fall from the motorcycle. In conjunction with his complaints, plaintiff requested but was denied a different motorcycle. Instead, Lane tried using plaintiff's motorcycle and then instructed plaintiff to continue using the same motorcycle, leading to his injury.

Lane testified at his deposition that he simply did not recall whether plaintiff complained about the motorcycle he was provided. Since Lane maintained that he did not recall any of the occurrences leading up to or surrounding plaintiff's injury, Lane could not confirm or deny inspecting the motorcycle, nor could he attest that he found it in working order, that plaintiff was riding the motorcycle incorrectly, or that any instructor instructed plaintiff how to ride it correctly. Thus plaintiff's testimony, standing alone, indicates the motorcycle was defective, whereas defendants present no evidence either that the motorcycle was not defective or that none of their instructors knew it was defective.

Plaintiff's unrebutted testimony presents evidence of defendants' or their employee's gross negligence. In sum, the evidence raises questions whether defendants' employee (a) knew the motorcycle was defective or (b) received complaints indicating its defective condition and failed either to inspect it or to instruct plaintiff how to handle it, yet instructed plaintiff to continue using it, implicitly assuring him it was safe for him to use. In any such instance defendants then recklessly placed plaintiff at risk of harm from a dangerous instrumentality without instructing him in the skills to use it safely. Troncoso v. Home Depot, U.S.A., Inc., 258 AD2d 644, 645 (2d Dep't 1999); Guay v. Winner, 189 AD2d 1081, 1083 (3d Dep't 1993); Zara v. Perzan, 185 AD2d 236, 237 (2d Dep't 1992); Splawnik v. Di Caprio, 146 AD2d 333, 335-36 (3d Dep't 1989). See Rios v. Smith, 95 NY2d 647, 653-54 (2001); Cone v. Nationwide Mut. Fire Ins. Co., 75 NY2d 747, 748-49 (1989); Barocas v. F.W. Woolworth Co., 207 AD2d 145, 148 (1st Dep't 1995); Sorto v. Flores, 241 AD2d 446, 447 (2d Dep't 1997). Just as Justice Walker's prior decision concluded, this conduct evinced a reckless or intentional disregard for plaintiff's safety. Insofar as Lane's testimony may be construed as a denial of plaintiff's complaints or the motorcycle's defective or dangerous condition, such conflicting testimony only raises a credibility issue not to be resolved via summary judgment. Medina v. 203 W. 109th St. Realty Corp., 16 AD3d 220 (1st Dep't 2005).

IV.CONCLUSION

For the above reasons, the court denies defendants' current [*4]motion for summary judgment. C.P.L.R. § 3212(b).

DATED: September 22, 2008

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LUCY BILLINGS, J.S.C.