CHARLES B. CUMMINGS, PLAINTIFF-APPELLANT, OPINION AND
ROBERT W. MANVILLE, DEFENDANT-RESPONDENT.
WILLIAM MATTAR, P.C., WILLIAMSVILLE (MATTHEW J. KAISER OF
COUNSEL), FOR PLAINTIFF-APPELLANT.
TREVETT CRISTO P.C., ROCHESTER (MELANIE S. WOLK OF COUNSEL),
PRESENT: SMITH, J.P., PERADOTTO, DEJOSEPH, NEMOYER, AND
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.
hereby ORDERED that the order so appealed from is reversed on
the law without costs, the motion is denied, and the
complaint is reinstated.
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.
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.
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 ), 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  [a]).
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).
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).
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
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 ...