Levine, J. (dissenting). We respectfully dissent. In our view, the owner and operator of the racetrack and sponsor of the races (hereinafter defendants) have a complete defense in the release and express assumption of risk signed by decedent prior and as a condition to his participation in racing at the track on the day of his fatal accident. We would hold that, irrespective of whether decedent paid a fee in order to race his car at the track, the release decedent executed was not invalidated by General Obligations Law § 5-326 because his status was not that of a "user” of a "pool, gymnasium, place of amusement or recreation, or similar establishment”, within the purpose or contemplation of that section.
The record clearly established that decedent was an experienced race car driver who was well familiar with the risks associated with that activity. Decedent’s widow, plaintiff herein, testified at an examination before trial that decedent had been engaged in auto racing for 19 years, raced weekly on the track where the accident occurred and had won trophys and prize money. He was a member of defendant Drivers’ Independent Race Tracks, Inc., the auto racing organization that sponsored the races in which decedent drove. The release decedent signed was in consideration for being permitted to participate in the races at the track and not for his admission as a spectator to the races. All the foregoing facts are set forth and emphasized in the moving papers submitted in support of defendants’ motion for summary judgment.
The legislative history of General Obligations Law § 5-326 (L 1976, ch 414, § 1) establishes that it was a consumer protection measure based upon an assessment that members of the general public patronizing proprietary recreational and amusement facilities are commonly either entirely unaware of the existence of exculpatory clauses in admission tickets or *157membership applications or are unappreciative of the legal consequences thereof (see, Governor’s Bill Jacket, L 1976, ch 414, § 1).
Decedent was not a patron user of the recreational or amusement establishment involved here. Rather, he was a knowledgeable, experienced participant, fully aware of the risks as to which he waived suit, and whose participation was in furtherance of the speedway venture. As such, decedent was simply not a member of the class General Obligations Law § 5-326 was designed to protect and, hence, the release he signed was effective as a complete defense (see, Howell v Dundee Fair Assn., 73 NY2d 804, 806; Smith v Lebanon Val. Auto Racing, 167 AD2d 779, 780-781; Lago v Krollage, 157 AD2d 49, 52-53, affd on other grounds 78 NY2d 95; see also, Van Amerogen v Donnini, 78 NY2d 880; cf., Beardslee v Blomberg, 70 AD2d 732).
For the foregoing reasons, we would reverse Supreme Court’s order and grant defendants’ motion for summary judgment.
Mahoney, P. J., and Weiss, J., concur with Casey J.; Levine and Mercure, JJ., dissent in an opinion by Levine, J.
Ordered that the order is affirmed, with costs.