Ackermann v. Town of Fishkill

• Decision Date: 07 February 1994
• Citation: 201 A.D.2d 441,607 N.Y.S.2d 384
• Parties: Heather Jo ACKERMANN, etc., et al., Appellants, v. TOWN OF FISHKILL, et al., Respondents, et al., Defendant.
• Court: New York Supreme Court — Appellate Division

Page 384

607 N.Y.S.2d 384

201 A.D.2d 441

Heather Jo ACKERMANN, etc., et al., Appellants, v. TOWN OF FISHKILL, et al., Respondents, et al., Defendant.

Supreme Court, Appellate Division,

Second Department.

Feb. 7, 1994.

Gross & Ianelli, Fishkill (Dominique Manpel-Scianna, of counsel), for appellants.

David E. Worby, P.C., White Plains (Mark A. Siesel, of counsel), for respondent Town of Fishkill.

J. Russell Clune, P.C., Harrison (Kevin Thomas Conklin, of counsel), for respondent Hugh J. Maurer.

Drake, Sommers, Loeb, Tarshis & Catania, P.C., Newburgh (Stephen J. Gaba, of counsel), for respondent Jack Perkins Const., Inc.

Cook, Tucker, Netter & Cloonan, P.C., Kingston (Eric M. Kurtz, of counsel), for respondent Metzger Const., Inc.

Kujawski, Aikman & Lubinsky, Newburgh (Judith L. Lubinsky, of counsel), for respondent Clove Excavators, Inc.

Hankin, Hanig, Stall & Caplicki, Poughkeepsie (Lynn M. Smookler, of counsel), for respondent Richard G. Barger.

Before SULLIVAN, J.P., and LAWRENCE, O'BRIEN and SANTUCCI, JJ.

MEMORANDUM BY THE COURT.

In a negligence action to recover damages for personal injuries, etc., the plaintiffs appeal from an order and judgment (one paper), of the Supreme Court, Dutchess County (Jiudice, J.), dated December 23, 1991, which granted the defendants' motions for summary judgment and thereupon dismissed the plaintiffs' complaint insofar as it is asserted against them. The notice of appeal from the decision dated August 29, 1991 is deemed a premature notice of appeal from the order and judgment (CPLR 5520[c].

ORDERED that the order and judgment is affirmed, with one bill of costs.

The infant plaintiff was injured when she fell from a bicycle she was riding down a steep roadway under construction on property owned by the Town of Fishkill (hereinafter the Town). The infant plaintiff ventured onto the roadway via a path from the adjacent municipal park. The roadway was constructed in order to connect Geering Way, a town road adjacent to the park, to a subdivision under development, known as Maurer Brook. The subdivision property, which was owned by the defendant Hugh J. Maurer, was part of a joint venture between Maurer and the defendant Richard Barger. Like the roadway, the Maurer Brook development was located in the wooded area adjacent to the park. To construct the roadway, Maurer and Barger contracted with the defendant construction companies to blast, excavate, and grade the area. At the time of the accident, the roadway was in the "rough grade" stage, that is, the blasting had been completed and rock and earth displaced by the blasting had been moved downward by bulldozer to level out the surface.

Upon motions for summary judgment by the defendants, the Supreme Court dismissed the plaintiffs' complaint. The court found that General Obligations Law § 9-103 barred liability against the Town, and, under the general principles of negligence, found that the remaining defendants were not liable to the plaintiffs.

We agree with the Supreme Court that Metzger Construction, Inc., and Jack Perkins Construction, Inc., are entitled to summary judgment. Metzger Construction, Inc., submitted evidence that it did not perform work at the site prior to the accident. Jack Perkins Construction, Inc., submitted evidence that it completed blasting at the top of the hill approximately one month prior to the accident, and that it was not responsible for the subsequent grading of the roadway. The plaintiffs failed to offer evidence to create a triable issue of fact as to the liability of these defendants.

The remaining issues concern the liability of the Town, the joint venturers Maurer and Barger, and Clove Excavators, Inc., which was responsible for grading the roadbed. We conclude that the court erred in finding that General Obligations Law § 9-103 precluded a finding of liability against the Town. Nevertheless, upon searching the record, we conclude that the Town and the remaining defendants are entitled to summary judgment.

General Obligations Law § 9-103 immunizes landowners from liability for injuries sustained on their property by persons who use the property for certain specified recreational activities, including bicycle riding. However, the Court of Appeals has held that merely engaging in an enumerated activity is not, in and of itself, sufficient to invoke General Obligations Law § 9-103 (see, Iannotti v. Consolidated Rail Corp., 74 N.Y.2d 39, 544 N.Y.S.2d 308, 542 N.E.2d 621). Instead, in order to determine whether the property in question falls within the statute, the court must look to whether the property is "physically conducive to the particular activity or sport" as well as whether it is the "type which would be appropriate for public use in pursuing the activity of recreation" (Iannotti v. Consolidated Rail Corp., supra, at 45, 544 N.Y.S.2d 308, 542 N.E.2d 621). We conclude that the...