The opinion of the court was delivered by: Spatt, District J.
MEMORANDUM OF DECISION AND ORDER
This action arises out of a fire at the defendants' marina in Lindenhurst, New York on May 9, 2007, which caused varying degrees of damage to the plaintiffs' boats. Presently before the Court is the MarineMax defendants' motion for partial summary judgment. For the following reasons, the motion is denied.
The following facts are derived from the parties' Local Rule 56.1 statements and their submissions on the motion.
Surfside 3 MarineMax, the business name used by the defendants MarineMax Inc., MarineMax East, Inc., MarineMax Northeast LLC, MarineMax Services, Inc., (collectively "the MarineMax defendants") at their Lindenhurst location, provides marines services, including storage, maintenance, and launching of vessels. The plaintiffs were each owners of boats, which were lawfully on the premises of Surfside 3 MarineMax at the time of the fire. The cause of the fire is as yet undetermined. Nevertheless, themoving defendants assert that three of the plaintiffs, Rick Mallette, James Koppel, and Patricia Schneider executed identical "2006 Winter Storage Program" contracts, which included an exculpatory clause, providing that:
It is understood and agreed by owner that Surfside 3 MarineMax is not responsible or liable for any loss through fire, theft, malicious mischief, personal injury, property damage, vandalism or loss of personal property and equipment whatsoever, and does not carry insurance to cover same, and the lessee agrees to waive his rights of subrogation against SS3 MarineMax. (Defs. Exh. A, B, and C, at ¶ 3). The MarineMax defendants contend that they executed the contracts and tendered performance according to its terms, repairing and storing the plaintiffs' boats.
In addition, the MarineMax defendants contends that on July 3, 2007, plaintiff Mallette signed a "General Release and Agreement in Settlement of All Claims with MarineMax" (the "Release"). The Release provides that Mallette and "MarineMax of New York, Inc." reached an agreement to resolve any and all issues regarding the fire on May 9, 2007 and the damage of Mallette's vessel arising from the fire. The Release further provides that Mallette agrees to hold harmless "MarineMax" and "MarineMax Inc." from any and all claims with respect to damage to his vessel arising from the fire. (Defs. Exh. D). The MarineMax defendants contend that in exchange for this Release, they sold Mallette a brand new boatbased on the market price with a 20% discount.
With respect to the somewhat confusing corporate structure of MarineMax, the defendants state that MarineMax Inc. is a Delaware limited liability company and is the parent company of a wholly owned subsidiary, MarineMax East, Inc. In turn, MarineMax East Inc. wholly owns MarineMax Northeast LLC, a Delaware limited liability company doing business in New York at 692 South Wellwood Avenue, Village of Lindenhurst, in the Town of Babylon. The defendants contend that MarineMax Inc., MarineMax East Inc., MarineMax NorthEast Inc., and MarineMax Services Inc. are doing business as Surfside 3 MarineMax.
Invoking the Court's admiralty and supplemental jurisdiction, see Commercial Union Ins. Co. v. Blue Water Yacht Club Ass'n., 239 F. Supp. 2d 316, 319 (E.D.N.Y. 2003), reconsideration den'd 289 F. Supp. 2d 337 (E.D.N.Y. 2003); Omaha Indem. Co. v. Whaleneck Harbor Marina, Inc., 610 F. Supp. 154 (E.D.N.Y. 1985),this action was filed by plaintiff Mallette on April 18, 2008, and consolidated with three related actions on October 10, 2008. The MarineMax defendants contend that the Winter Storage Program agreement and the Release are valid and enforceable, and therefore, they are entitled to summary judgment against Mallette, Koppel, and Schneider. The defendants made the present motion for summary judgment on December 4, 2008. Discovery in this case has not been certified as complete.
A. As to the defendants' motion for partial summary judgment Summary judgment is proper only where no genuine issue of material fact exists to present to the trier of fact. Rule 56 of the Federal Rules of Civil Procedure states:
The judgment sought should be rendered if the pleadings, the discovery and disclosure materials on file, and any affidavits show that there is no genuine issue as to any material fact and that the movant is entitled to judgment as a matter of law.
As stated by the Rule, a motion for summary judgment should be granted only when "there is no genuine issue as to any material fact and . . . the moving party is entitled to a judgment as a matter of law." Fed. R. Civ. P. 56(c); see Celotex Corp. v. Catrett, 477 U.S. 317, 322, 106 S.Ct. 2548, 2552, 91 L.Ed. 2d 265 (1986). The moving party bears the burden of establishing the absence of a genuine issue of material fact. See Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 256, 106 S.Ct. 2505, 91 L.Ed. 2d 202 (1986). Once the moving party has offered evidence that no genuine issue of material fact remains, the burden shifts to the non-moving party to provide evidence that a genuine, triable issue remains. Id. at 250. It is well-settled that the non-moving party cannot defeat summary judgment with only unsupported assertions or the allegations in its pleadings. Fed. R. Civ. P. 56(e); Cifarelli v. Vill. of Babylon, 93 F.3d 47, 51 (2d Cir. 1996); Goenaga v. March of Dimes Birth Defects Found., 51 F.3d 14, 18 (2d Cir. 1995). "If the evidence is merely colorable, or is not significantly probative, summary judgment may be granted." Anderson, 477 U.S. at 249--50; 106 S.Ct. 2505, 91 L.Ed. 2d 202 (citations omitted).
Still, in deciding a motion for summary judgment, the Court must view all of the evidence in the light most favorable to the non-moving party and must draw all permissible inferences from the submitted affidavits, exhibits, interrogatory answers, and depositions in favor of that party. See Anderson, 477 U.S. at 255, 106 S.Ct. 2505, 91 L.Ed. 2d 202; Vann v. City of N.Y., 72 F.3d 1040, 1048--49 (2d Cir. 1995). Notably, "the trial court's task at the summary judgment motion stage of litigation is carefully limited to discerning whether there are genuine issues of material fact to be tried, not deciding them. Its duty, in short, is confined at this point to issue-finding; it does not extend to issue-resolution." Gallo v. Prudential Residential Servs. Ltd., 22 F.3d 1219, 1224 (2d Cir. 1994); see Donahue v. Windsor ...