DECISION AND ORDER I. BACKGROUND Plaintiff Almeida-Kulla sues for injuries she sustained April 30, 2016, after falling from a horse owned by defendant Deep Hollow Corp. as Almeida-Kulla was participating in its guided horseback ride. Plaintiff Kulla, her husband, claims derivatively for loss of Almeida-Kulla’s services and society. Plaintiffs move to dismiss defendants’ affirmative defenses pertaining to Almeida-Kulla’s assumption of risk and culpable conduct, C.P.L.R. §3211(b); for summary judgment on defendants’ liability, C.P.L.R. §3212(b) and (e); and for a finding that Deep Hollow’s agreement and release is unenforceable because it exempts Deep Hollow from liability for the negligence of Deep Hollow’s employees. C.P.L.R. §§3001, 3212(b) and (e); N.Y. Gen. Oblig. Law §5-326. Defendants separately move for summary judgment dismissing the amended complaint. C.P.L.R. §3212(b). For the reasons explained below, the court grants plaintiffs’ motion in part and denies defendants’ motion. II. UNDISPUTED FACTS On April 30, 2016, plaintiffs’ family, together with another family, visited Deep Hollow’s ranch for a guided horseback ride of 90 minutes. Plaintiffs’ riding group comprised four adults with their four young children led by a trail guide, Olga Goworek. Before departing on the ride, Almeida-Kulla signed Deep Hollow’s Rental Agreement and Liability Release, which Deep Hollow concedes does not waive its liability for its employees’ negligence. Near the end of plaintiffs’ ride and in sight of the stable, their riding group stalled and was holding up another riding group behind, because one of the children’s horses in plaintiffs’ group began grazing. The other group’s trail guide, Francesca Keogh, dismounted her horse to attend to the grazing horse in plaintiffs’ group. Plaintiffs’ group members all remained on their horses. During this wait, Keogh’s horse suddenly ran off toward the stable. Aff. of Daniel Flanzig Ex. F, at 25, 39; Aff. of Joseph S. Fritzson Ex. J, at 25, 39. Plaintiffs’ group of horses likewise started to run uncontrolled in the same direction. Because Almeida-Kulla was unable to control her horse, she fell from her horse and sustained fractures of her clavicle, scapula, and ribs as well as a long contusion and pneumothorax. III. DISPUTED FACTS The parties dispute three factual issues material to the parties’ respective motions. First, the parties dispute whether Deep Hollow’s trail guide Keogh, who was leading the group of riders behind plaintiffs’ group, secured her horse adequately, if at all, after dismounting to assist one of the children in plaintiffs’ group of stalled riders. Second, the parties dispute the sequence in which the horses ran back to the stable, specifically whether Keogh’s horse first ran off, causing plaintiffs’ group of horses to follow the guide horse, or plaintiffs’ group of horses departed before or simultaneously with Keogh’s horse. Third, the parties dispute whether Almeida- Kulla was holding her reins tightly when her horse began running back to the stable. Although the parties also dispute whether the two groups of riders merged and the significance of such a merger and whether a cause external to the groups spooked or scared the horses, these factual questions do not materially bear on the parties’ motions. IV. STANDARDS FOR SUMMARY JUDGMENT AND FOR DISMISSAL OF DEFENSES To obtain summary judgment, the moving parties must make a prima facie showing of entitlement to judgment as a matter of law, through admissible evidence eliminating all material issues of fact. C.P.L.R. §3212(b); Friends of Thayer Lake LLC v. Brown, 27 N.Y.3d 1039, 1043 (2016); Nomura Asset Capital Corp. v. Cadwalader, Wickersham & Taft LLP, 26 N.Y.3d 40, 49 (2015); Voss v. Netherlands Ins. Co., 22 N.Y.3d 728, 734 (2014); Vega v. Restani Constr. Corp., 18 N.Y.3d 499, 503 (2012). Only if the moving parties satisfy this standard does the burden shift to the opposing parties to rebut that prima facie showing by producing evidence, in admissible form, sufficient to require a trial of material factual issues. De Lourdes Torres v. Jones, 26 N.Y.3d 742, 763 (2016); Nomura Asset Capital Corp. v. Cadwalader Wickersham & Taft LLP, 26 N.Y.3d at 49; Morales v. D & A Food Serv., 10 N.Y.3d 911, 913 (2008); Hyman v. Queens County Bancorp, Inc., 3 N.Y.3d 743, 744 (2004). In evaluating the evidence for purposes of the parties’ motions, the court construes the evidence in the light most favorable to the opponents. Stonehill Capital Mgt. LLC v. Bank of the W., 28 N.Y.3d 439, 448 (2016); De Lourdes Torres v. Jones, 26 N.Y.3d at 763; William J. Jenack Estate Appraisers & Auctioneers, Inc. v. Rabizadeh, 22 N.Y.3d 470, 475 (2013); Vega v. Restani Constr. Corp., 18 N.Y.3d at 503. If the moving parties fail to meet their initial burden, the court must deny them summary judgment despite any insufficiency in the opposition. Voss v. Netherlands Ins. Co., 22 N.Y.3d at 734; Vega v. Restani Constr. Corp., 18 N.Y.3d at 503; Smalls v. AJI Indus., Inc., 10 N.Y.3d 733, 735 (2008); JMD Holding Corp. v. Congress Fin. Corp., 4 N.Y.3d 373, 384 (2005). Plaintiffs also move to dismiss the first, second, fifth, tenth, eleventh, and twelfth affirmative defenses, which pertain to Almeida-Kulla’s assumption of risk and culpable conduct, in defendants’ answer to the amended complaint. C.P.L.R. §3211(b). The court may dismiss affirmative defenses if they are without merit. C.P.L.R. §3211(a)(7) and (b). Upon plaintiffs’ motion to dismiss affirmative defenses, however, it is not defendants’ burden to establish their defenses by admissible evidence, but plaintiffs’ burden to establish that the defenses are legally inapplicable. Pugh v. New York City Hous. Auth., 159 A.D.3d 643, 643 (1st Dep’t 2018); Granite State Ins. Co. v. Transatlantic Reins. Co., 132 A.D.3d 479, 481 (1st Dep’t 2015); Calpo-Rivera v. Siroka, 144 A.D.3d 568, 568 (1st Dep’t 2016); 534 E. 11th St. Hous. Dev. Fund Corp. v. Hendrick, 90 A.D.3d 541, 542 (1st Dep’t 2011). To defeat plaintiffs’ motion to dismiss affirmative defenses, defendants only need allege the defenses’ factual elements, whether in the answer to the amended complaint or by supplementing the answer with affidavits or other admissible evidence. Pugh v. New York City Hous. Auth., 159 A.D.3d at 643; Granite State Ins. Co. v. Transatlantic Reins. Co., 132 A.D.3d at 481; 534 E. 11th St. Hous. Dev. Fund Corp. v. Hendrick, 90 A.D.3d at 542. V. DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT A. DEFENDANTS ESTABLISH A PRIMA FACIE DEFENSE THAT ALMEIDAKULLA ASSUMED THE RISKS INHERENT IN HORSEBACK RIDING. Defendants rely on Almeida-Kulla’s deposition testimony to set forth a prima facie showing that Almeida-Kulla assumed the risks inherent in horseback riding. Morgan v. State of New York, 90 N.Y.2d 471, 484 (1997); Valverde v. Great Expectations, LLC, 131 A.D.3d 425, 426 (1st Dep’t 2015); Tadmor v. New York Jiu Jitsu Inc., 109 A.D.3d 440, 441 (1st Dep’t 2013). She admitted that before departing on the horseback ride she signed Deep Hollow’s Rental Agreement and Liability Release, which includes her initials at every paragraph and signature at the end and provides that she assumed the risks of participating in this activity. Tindall v. Ellenberg, 281 A.D.2d 225, 225 (1st Dep’t 2001). Defendants also point to Almeida-Kulla’s use of a helmet and her insistence that her children also wear helmets, even though helmets were not required, as indicating her assumption of the risks involved. New York General Business Law §396-dd, however, mandated that Deep Hollow provide helmets to all minors and to all beginning riders, which is how Almeida-Kulla described herself to defendants and how they admitted they considered her. Defendants’ deposition witness further admitted her awareness that helmets were required “by law” at least for minors. Fritzson Aff. Ex. J, at 15. B. PLAINTIFFS REBUT DEFENDANTS’ SHOWING THAT ALMEIDA-KULLA ASSUMED ALL THE RISKS INVOLVED. Consistent with the standards outlined above, the court must deny defendants’ motion for summary judgment based on assumption of the risk if the evidence raises factual questions whether defendants concealed or unreasonably heightened the risk of harm beyond the usual risks inherent in the sporting activity that plaintiffs undertook. Morgan v. State of New York, 90 N.Y.2d at 485; Madsen v. Catamount Ski Resort, 165 A.D.3d 475, 475 (1st Dep’t 2018); Zelkowitz v. Country Group, Inc., 142 A.D.3d 424, 427 (1st Dep’t 2016). By raising factual issues material to whether Almeida-Kulla assumed the risk of riding her horse under the circumstances plaintiffs describe, they rebut defendants’ showing and defeat their motion for summary judgment. Plaintiffs’ claims do not rest solely on the horses having acted in an unexpected manner, which may cause the riders to be thrown and is a risk inherent in horseback riding. E.g., Blumenthal v. Bronx Equestrian Ctr., Inc., 137 A.D.3d 432, 432 (1st Dep’t 2016); Stanislav v. Papp, 78 A.D.3d 556, 556-57 (1st Dep’t 2010). Plaintiffs claim that the intervening negligence by Deep Hollow’s trail guide in failing to secure her guide horse, which consequently ran off to the stable, prompting Almeida- Kulla’s horse and the other nearby horses to follow the guide horse, caused Almeida-Kulla to fall from her horse. While Almeida-Kulla may have assumed the risks inherent in riding horses, consistent with defendants’ concession that her signed waiver did not waive Deep Hollow’s liability for its employees’ negligence, Almeida-Kulla did not assume the risk of the trail guide’s intervening negligence. Deep Hollow’s Rental Agreement and Liability Release also asks prospective riders whether they are beginner riders, which Almeida-Kulla designated, alerting defendants to the need to operate the tour consistent with her minimal riding skills and the likelihood that she did not appreciate any risks not articulated in the agreement and release. Morgan v. State of New York, 90 N.Y.2d at 486; Turcotte v. Fell, 68 N.Y.2d 432, 440 (1986); Maddox v. City of New York, 66 N.Y.2d 270, 278-79 (1985); Zelkowitz v. Country Group, Inc., 142 A.D.3d at 428. Plaintiffs’ evidence demonstrates the employee’s negligence that posed a risk not articulated in the agreement and release. Kulla testified at his deposition that: the group leader from the group behind us had gotten off her horse to move along the kid’s horses [sic] that was grazing. She did not tie up her horse. Her horse got spooked, and it took off. Horses in that group behind us also started taking off, and the rest of — our group’s horses took off…. Even our group leader’s horse took off, and what I mean by “taking off,” is that they went into a full sprint. Fritzon Aff. Ex. F, at 28. Regarding the sequence in which the horses ran back to the stable and whether the trail guide’s horse ran off first, causing the other horses to follow the guide horse, Kulla was “fairly certain that it was that group leader’s horse” and further testified that “I remember that horse running by me, before the other horses.” Id. at 39. Defendants suggest that only Keogh’s horse ran by Kulla because all the other horses were in front of him. If they were in front, then the court, construing the evidence most favorably to plaintiffs, may infer that he was in a position to observe them when, from that vantage point, he observed that “that group leader’s horse” ran off first and then confirmed that it ran “before the other horses.” Id. Finally, the uneventful horseback tour up to that point, plus the over 1,000 previous uneventful horseback tours guided by defendants, further supports plaintiffs’ claim that Almeida-Kulla’s injury was caused by the negligence of Deep Hollow’s employee and not the risks inherent in every guided horseback tour. Id. Ex. J, at 26-27, 48-49. Because Almeida-Kulla considered herself a beginner rider, she specifically remembered “holding onto both the reigns [sic], prior to falling off the horse…. I would say 100 percent,” id. Ex. E, at 61, with both her feet in the stirrups. Therefore, despite Almeida-Kulla’s beginner status, plaintiffs also rebut defendants’ defense that her culpable conduct was the sole cause of her fall off her horse. In sum, plaintiffs raise material factual issues undermining defendants’ defense that Almeida-Kulla assumed the risk of her injury. As conceded by defendants, Almeida-Kulla did not assume the risk of the Deep Hollow trail guide’s negligence demonstrated by Kulla’s testimony. Custodi v. Town of Amherst, 20 N.Y.3d 83, 88 (2012); Morgan v. State of New York, 90 N.Y.2d at 485; Turcotte v. Fell, 68 N.Y.2d at 439. This evidence indicates that the negligence of Deep Hollow’s employee increased the risk that horses suddenly would sprint back to the stable. Morgan v. State of New York, 90 N.Y.2d at 485; Madsen v. Catamount Ski Resort, 165 A.D.3d at 475; Zelkowitz v. Country Group, Inc., 142 A.D.3d at 427. Because plaintiffs raise material factual issues as to whether Almeida-Kulla assumed the risk of the particular circumstances that caused her to fall off her horse, plaintiffs’ claims regarding defendants’ negligence, fault, and consequent liability survive defendants’ motion for summary judgment. VI. PLAINTIFFS’ MOTION TO DISMISS DEFENDANTS’ AFFIRMATIVE DEFENSES, FOR SUMMARY JUDGMENT, AND FOR A DECLARATORY JUDGMENT A. PLAINTIFFS’ MOTION TO DISMISS DEFENDANTS’ AFFIRMATIVE DEFENSES PURSUANT TO C.P.L.R. §3211(b) Defendants’ verified answer to the amended complaint pleads that Almeida-Kulla assumed the risks associated with horseback riding. While the answer contains no evidentiary facts, defendants now supplement their affirmative defenses with the deposition testimony by Deep Hollow’s trail guide Keogh, who led the riding group behind plaintiffs’ group. She testified that an unknown cause spooked all the horses, triggering them to run to the stable, which is a risk inherent in horseback riding that Almeida-Kulla assumed. Flanzig Aff. Ex. F, at 35. Keogh explained that this risk of a horse spooking, becoming scared or shying away, and suddenly running is inherent in riding, no matter how experienced the rider or trained the horse, because a horse is an animal with instinctive animal behaviors. Id. at 24- 26. Through this testimony, defendants defeat plaintiffs’ motion to dismiss the affirmative defense of assumption of risk. Morgan v. State of New York, 90 N.Y.2d at 484; Valverde v. Great Expectations, LLC, 131 A.D.3d at 426; Tadmor v. New York Jiu Jitsu Inc., 109 A.D.3d at 441. See Pugh v. New York City Hous. Auth., 159 A.D.3d at 643; Granite State Ins. Co. v. Transatlantic Reins. Co., 132 A.D.3d at 481; 534 E. 11th St. Hous. Dev. Fund Corp. v. Hendrick, 90 A.D.3d at 542. Defendants’ verified answer to the amended complaint also pleads that Almeida-Kulla’s culpable conduct was the sole or at least a contributing cause of her injury. Like the affirmative defense of assumption of risk, defendants’ bald allegations require supplementation, supplied by Keogh’s testimony and affidavit. Keogh observed that Almeida-Kulla both failed to hold her reins tightly to control her horse and failed to pull the reins back after the horses were spooked and began running to the stable, contrary to the preliminary instructions to all riders and Keogh’s instructions to Almeida-Kulla when the horses began to run. Flanzig Aff. Ex. F, at 38-39; Aff. in Opp’n of Joseph S. Fritzon Ex. F
