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Michael Metzgier, Plaintiff-Respondent v. Abe A. Miller

SUPREME COURT OF THE STATE OF NEW YORK Appellate Division, Fourth Judicial Department


September 30, 2011

MICHAEL METZGIER, PLAINTIFF-RESPONDENT,
v.
ABE A. MILLER, DEFENDANT-APPELLANT.

Appeal from an order of the Supreme Court, Herkimer County (Michael E. Daley, J.), entered June 29, 2010 in a personal injury action.

Metzgier v Miller

Decided on September 30, 2011 Appellate Division, Fourth Department Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. This opinion is uncorrected and subject to revision before publication in the Official Reports.

PRESENT: FAHEY, J.P., PERADOTTO, LINDLEY, SCONIERS, AND GREEN, JJ.

The order denied the motion of defendant for summary judgment.

It is hereby ORDERED that the order so appealed from is unanimously reversed on the law without costs, defendant's motion is granted, and the complaint is dismissed.

Memorandum: Plaintiff commenced this action seeking damages for injuries he allegedly sustained while operating an all-terrain vehicle (ATV) on defendant's property when he struck a single strand of barbed wire fencing that defendant had strung between two trees on the property. At the time of the accident, plaintiff and his cousin were operating ATVs on defendant's property without the knowledge or permission of defendant. We conclude that Supreme Court erred in denying defendant's motion for summary judgment dismissing the complaint. Defendant met his initial burden on the motion by establishing that he was entitled to the benefit of the recreational use statute, i.e., General Obligations Law § 9-103, inasmuch as he was the owner of the property where plaintiff was operating an ATV (see § 9-103 [1] [a]; Albright v Metz, 88 NY2d 656, 662; Bragg v Genesee County Agric. Socy., 84 NY2d 544, 551-552; see generally Zuckerman v City of New York, 49 NY2d 557, 562). In opposition to defendant's motion, plaintiff failed to come forward with evidence in admissible form establishing that defendant's conduct in constructing the barbed wire fencing constituted a "willful or malicious failure to guard, or to warn against, a dangerous condition" such that the statute would not limit defendant's liability (§ 9-103 [2] [a]; see Farnham v Kittinger, 83 NY2d 520, 528-529; Hinchliffe v Orange & Rockland Utils. Co., 216 AD2d 528, 529, lv denied 87 NY2d 801; Wilkins v State of New York, 165 AD2d 514, 518).

Entered: September 30, 2011

Patricia L. Morgan Clerk of the Court

20110930

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