Pages Numbered Notice of Motion/Order to Show Cause/Petition/Cross Motion and Affidavits (Affirmations) Annexed 1-2 Opposing Affidavits (Affirmations) 3 Reply Affidavits (Affirmations) 4 Affidavit (Affirmation) Other Papers Upon the foregoing papers, it is ORDERED that the motion by the defendant for summary judgment in its favor is granted, and it is further ORDERED that the cross-motion by the plaintiff for summary judgment on the issue of liability is denied. This is an action to recover damages for personal injuries allegedly sustained by the infant plaintiff while sledding on property owned by the defendant. The infant plaintiff went with her parents and sisters to the Joseph A. Edgar Intermediate School to go sledding down a hill on the property. Other children were sledding in the area when they arrived. The infant plaintiff went down the hill approximately three times without incident. On the fourth trip, she went down a different side of the hill and crashed into two trailers that were located at the bottom of the hill, near a fence by the parking lot. The trailers had been temporarily parked in the area by the school’s grounds crew. Following the completion of discovery, the defendant moves for summary judgment on the grounds that it is immune from liability pursuant to section 9-103 of the General Obligations Law. The plaintiff cross-moves for summary judgment on the issue of liability. General Obligations Law §9-103 provides landowners with immunity from liability for ordinary negligence if a person is injured while engaged in a listed recreational activity upon the landowner’s property (see Bragg v. Genesee County Agric. Society, 84 NY2d 544; Farnham v. Kittinger, 83 NY2d 520; Morales v. Coram Materials Corp., 51 AD3d 86). The statute removes a landowner’s obligation “to keep the premises safe [and] to give warning of any hazardous condition…to persons entering for [recreational] purposes” (General Obligations Law §9-103[1][a]; see Finnocchiaro v. Napolitano, 52 AD3d 463). To establish entitlement to summary judgment based on the statute, a defendant must establish ownership of the property, the plaintiff’s engagement in one of the recreational activities specified by the statute and the suitability of the property for that recreational use (see Bragg v. Genesee County Agric. Society, 84 NY2d 544; Finnocchiaro v. Napolitano, 52 AD3d 463; Morales v. Coram Materials Corp., 51 AD3d 86). “A substantial indicator that property is physically conducive to the particular activity is whether recreationists have used the property for that activity in the past; such past use by participants in the sport manifests the fact that the property is physically conducive to it” (Albright v. Metz, 88 NY2d 656, 662 quoting Iannotti v. Consolidated Rail Corp., 74 NY2d 39, 45). Here, it is undisputed that the defendant owned the subject property and that the infant plaintiff was engaged in sledding, which is a recreational activity specified by the statute. The plaintiff Christina Lombardi-Curtin testified that the location was known as a place for sledding in the community and had been used since she was a child. The testimony also established that other children were sledding on the date of the incident. Thus, the defendant made a prima facie showing that the property was suitable for the activity of sledding (see Twomey v. Rosenthal, 52 AD3d 693; Powderly v. Colgate Univ., 248 AD2d 365). The plaintiff contends that the property was not suitable for sledding because of the location of the trailers. However, the “presence or absence of a dangerous condition is not the benchmark for determining suitability” (see Hinchliffe v. Orange & Rockland Utilities, 216 AD2d 528, 529 quoting McGregor v. Middletown School Dist., 190 AD2d 923, 924; see Rivera v. Glen Oaks Village Owners Inc., 41 AD3d 817). The Court of Appeals has held that “suitability must be judged by viewing the property as it generally exists, not portions of it at some given time. Any other test, which requires the owner to inspect the land, to correct temporary conditions or locate and warn of isolated hazards as they exist on a specific day, would vitiate the statute by reimposing on the owner the common-law duty to inspect and correct hazards on the land.” (Albright v. Metz, 88 NY2d at 664 quoting Bragg v. Genesee County Agric. Society, 84 NY2d at 552). Thus, the plaintiff has failed to raise an issue of fact as to suitability. The plaintiff also contends that the defendant may be held liable for the willful or malicious failure to warn against a dangerous condition which is a statutory exception (see General Obligations Law §9-103[2][a]). However, the Court of Appeals has held that in order to invoke the exception, there must be a “high-threshold demonstration by the injured party to show willful intent by the alleged wrongdoer” (Farnham v. Kittinger, 83 NY2d at 529). The exception must be strictly construed in order that the major policy underlying the legislation itself is not defeated, with all doubts resolved in favor of the general provision rather than the exception (see Farnham v. Kittinger, supra). An owner’s actions in creating a dangerous condition must be based on a showing of particular, not inferred, malice and willfulness, and not on simple negligence (see Farnham v. Kittinger, supra). Thus, there must be evidence of an “intentional act of unreasonable character performed in disregard of a known or obvious risk so great as to make it highly probable that harm would result” (Hillman v. Penn Central Corp., 204 AD2d 902 quoting Gardener v. Owasco River Railway, 142 AD3d 61, 64). In this case, the plaintiff failed to demonstrate that parking the trailers near a fence constituted willful or malicious conduct by the defendant (see Farnham v. Kittinger, supra; Sega v. State of New York, 60 NY2d 183; Twomey v. Rosenthal, 52 AD3d at 695-696; Thomann v. Niagara Mohawk Power Corp., 90 AD3d 1583; Powderly v. Colgate Univ., 248 AD2d 365; Scuderi v. Niagara Mohawk Power Corp., 243 AD2d 1049; Hillman v. Penn Central Corp., 204 AD2d 902). Accordingly, the motion by the defendant for summary judgment is granted and the cross-motion by the plaintiff is denied. Dated: February 20, 2024
