Defendant demonstrated prima facie entitlement to summary judgment on the doctrine of assumption of risk. Plaintiff was engaged in a sport or recreational activity, the commonly appreciated risks of which are inherent in, and arise out of, the nature of the sport generally and are consequent upon such participation ( see e.g. Morgan v State of New York, 90 NY2d 471, 484). Here, the risk of the main parachute failing to open during a tandem sky dive was perfectly obvious. Indeed, plaintiff was given a reserve parachute. Plaintiff failed to raise a triable issue of fact as to whether the injury-causing event resulted from defendant's negligence, creating unique and dangerous conditions beyond those inherent in the sport ( id. at 485).
So much of the waiver and release signed by plaintiff as purports to exempt defendant from its own negligence is void under General Obligations Law § 5-326. Severance of that provision leaves the rest of the contract intact ( see Caruso v Allnet Communication Servs., 242 AD2d 484, 485). As to defendant's counterclaims, however, we note that whether agreements not to sue a defendant and to pay its attorney's fees and litigation costs might transgress the public policy of promoting recreational activities advanced by section 5-326 does not appear to have been considered by the courts ( cf. Ciofalo v Vic Tanney Gyms, 10 NY2d 294, 297 [exculpatory clause not barred by "overriding public interest"]), the parties have not briefed the issue, and we do not reach it ( see Brown v Christopher St. Owners Corp., 87 NY2d 938, 939; Bacchiocchi v Ranch Parachute Club, 273 AD2d 173, 176). Defendant's motion to enter judgment by default (CPLR 3215 [c]) was appropriately denied in the exercise of discretion ( cf. Charles F. Winson Gems v D. Gumbiner, Inc., 85 AD2d 69, 71, affd 57 NY2d 813), and plaintiff should be afforded the opportunity to assert any defenses she might have to defendant's counterclaims.