¶1(concurring). While the footnote in Johnson v Thruway Speed-
¶2ways (63 AD2d 204, 205) that section 5-326 of the General Obligations Law voids releases of liability for injuries arising in connection with auto racing may have been dictum, I see no reason why it should not be applied in this case where the issue is squarely before us. The majority would distinguish Johnsonfrom the case before us on the basis that the party signing the release in Johnsonwas a spectator while the signatory in this case was a participant. However, there is nothing in either the language of the statute or its legislative history to suggest that such a distinction was intended. In fact, a review of the legislative history of section 5-326 of the General Obligations Law plainly indicates that the Legislature, in drafting the statute to cover all "users” of recreational facilities, intended to overrule the holding of Ciofalo v Vic Tanney Gyms (10 NY2d 294) wherein the Court of Appeals upheld the enforceability of a contractual provision signed by a member of a gymnasium which insulated the gymnasium from liability for personal injuries resulting from its negligence (see Governor’s Bill Jacket, L 1976, ch 414). Since the plaintiff in the case at bar is no less a "user” of a recreational facility than was the plaintiff in Ciofalo, it appears that releases such as those found in this case were the very ones which the Legislature deemed to be void as against public policy and wholly unenforceable. The majority’s alternative argument that the statute is not applicable to this case since the release signed was not "in connection with, or collateral to” any ticket of admission alters what is, to me, the plain meaning of the statute. Accordingly, I would affirm the order of Special Term.