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Cummings v. Manville

Supreme Court of New York, Fourth Department

July 7, 2017






          CURRAN, J.

         Appeal from an order of the Supreme Court, Monroe County (Renee Forgensi Minarik, A.J.), entered February 1, 2016. The order granted the motion of defendant for summary judgment.

         It is hereby ORDERED that the order so appealed from is reversed on the law without costs, the motion is denied, and the complaint is reinstated.

         On April 4, 2010, plaintiff visited his friend Anthony Cringoli at his home on Walker Lake Ontario Road in Hamlin, New York. On that day, plaintiff brought to Cringoli's home, for the first time, his four-wheel all-terrain vehicle (ATV). Cringoli's home is accessed only by a private gravel road owned by defendant. At the time of the accident, plaintiff had intended to ride his ATV into Cringoli's backyard. Plaintiff, however, could not access the backyard directly from Cringoli's property. Instead, plaintiff traveled down defendant's gravel road with the intention to go around a hedgerow and onto a neighboring parcel of land, and then cut back into Cringoli's backyard. While traveling on the road on his ATV, plaintiff struck a pothole, which caused his wheel to jerk sideways, throwing him from the ATV.

         Plaintiff commenced this negligence action against defendant seeking damages for the injuries he sustained in the accident. Following joinder of issue and discovery, defendant moved pursuant to CPLR 3212 for summary judgment dismissing the complaint on the ground that he was immune from liability pursuant to General Obligations Law § 9-103. Supreme Court granted the motion, and we conclude that the order should be reversed.

         General Obligations Law § 9-103, commonly referred to as the recreational use statute, grants owners, lessees, or occupants of premises immunity from liability based on ordinary negligence if a member of the public enters their property to engage in specified activities, including motorized vehicle operation for recreational purposes (see Bragg v Genesee County Agric. Socy., 84 N.Y.2d 544, 546-547). Subject to certain exceptions not relevant to this appeal (see § 9-103 [2]), the statute provides that "an owner, lessee or occupant of premises, whether or not posted as provided in section 11-2111 of the environmental conservation law, owes no duty to keep the premises safe for entry or use by others for... motorized vehicle operation for recreational purposes..., or to give warning of any hazardous condition or use of or structure or activity on such premises to persons entering for such purposes" (§ 9-103 [1] [a]).

         The purpose of the statute was articulated by the Court of Appeals as follows:

"The premise underlying section 9-103 is simple enough: outdoor recreation is good; New Yorkers need suitable places to engage in outdoor recreation [and] more places will be made available if property owners do not have to worry about liability when recreationists come onto their land" (Bragg, 84 N.Y.2d at 550).

         Defendant, as the party seeking summary judgment, has the burden of establishing as a matter of law that he is immune from liability pursuant to the statute (see generally Giuffrida v Citibank Corp., 100 N.Y.2d 72, 81; Friends of Animals v Associated Fur Mfrs., 46 N.Y.2d 1065, 1067). Thus, defendant is required to establish that he owned, leased or occupied the property, that plaintiff was engaged in a specified recreational activity, and that the property was suitable for recreational use (see generally Bragg, 84 N.Y.2d at 548). Here, the parties do not dispute that plaintiff was engaged in a recreational activity, ATV riding, which falls within the scope of the statute (see Bryant v Smith, 278 A.D.2d 576, 576). It is also undisputed that defendant owned the road where the accident occurred. Thus, the central issue in this case is whether defendant established that the road is suitable for the recreational use of ATV riding (see Albright v Metz, 88 N.Y.2d 656, 662).

         In analyzing whether land is suitable for a specific recreational use, courts look to whether the portion of the land on which the plaintiff was injured was suitable for that particular activity. For instance, in Pulis v T.H. Kinsella, Inc. (156 Misc.2d 499, affd for reasons stated 204 A.D.2d 976), the plaintiff operated an ATV in a gravel pit owned by the defendant and, upon leaving the gravel pit, was injured when the ATV ran into a cable that stretched across the entrance roadway (Pulis, 156 Misc.2d at 501). Most of the property owned by the defendant was undeveloped and suitable for ATV use, but the plaintiff never operated his ATV in those areas (id. at 502). Supreme Court differentiated between the suitable and unsuitable portions of the property for ATV use, determining that the Legislature could not have intended for General Obligations Law § 9-103 to apply to a gravel pit that was not suitable for ATVs (id. at 503-504). This Court agreed with Supreme Court's determination that the property owner was ineligible for the statutory immunity provided by section 9-103, and permitted the plaintiff's negligence action to proceed (Pulis, 204 A.D.2d at 976).

         The Court of Appeals used the same analysis in Albright but ended in a different result under a different factual scenario therein. In that case, the plaintiff's son rode a motorized dirt bike on property, a portion of which was used by the defendant owner as a landfill (Albright, 88 N.Y.2d at 660-661). The plaintiff's son drove up a path alongside the landfill to the top of a berm, and then plunged 35 feet into the bed of the landfill (id. at 660). The plaintiff contended that the landfill area of the property was not suited for dirt bikes, and that General Obligations Law § 9-103 therefore did not immunize the defendant owner from liability (id. at 661). The defendant owner contended, however, that the statutory immunity did apply because the dirt path on which the plaintiff's son was riding was suitable for such a recreational use. The Court of Appeals agreed with the defendant owner, and explained that, "[t]o the extent plaintiff argues that the land's suitability must be judged by its general characteristics' and that the general characteristic of the property at issue is landfill, plaintiff ignores the fact that portions of [the] land were not used as landfill and it was in these other areas that plaintiff's son injured himself while motorbiking" (id. at 663-664). In other words, while the ...

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