Gardner v. Owasco River Ry., Inc.

• Decision Date: 23 November 1988
• Citation: 534 N.Y.S.2d 819,142 A.D.2d 61
• Parties: Charles GARDNER, Respondent, v. OWASCO RIVER RAILWAY, INC., Appellant, et al., Defendant.
• Court: New York Supreme Court — Appellate Division

Page 819

534 N.Y.S.2d 819

142 A.D.2d 61

Charles GARDNER, Respondent, v. OWASCO RIVER RAILWAY, INC., Appellant, et al., Defendant.

Supreme Court, Appellate Division Third Department.

Nov. 23, 1988.

Bragar & Wexler (Raymond A. Bragar, of counsel), New York City and Horigan, Horigan, Pennock & Lombardo, P.C., Amsterdam, for appellant.

Robert L. Briskie, Amsterdam, for respondent.

Before MAHONEY, P.J., and KANE, CASEY, YESAWICH, and MERCURE, JJ.

KANE, Justice.

Plaintiff was involved in an accident on January 29, 1984 at approximately 12:30 P.M. when the three-wheel all-terrain vehicle (hereinafter ATV) he was operating allegedly struck a snow and ice barrier located on an abandoned railway bed owned by defendant Owasco River Railway, Inc. (hereinafter Owasco). The barrier had apparently been erected by defendant John Skonieczny to slow down individuals using the railway bed at high speed. The barrier was located a short distance from a point where the railway bed crossed Skonieczny's driveway. Plaintiff then commenced this action against defendants seeking damages for personal injuries he suffered as a result of the accident.

After serving its answer, Owasco moved for summary judgme dismissing the complaint and all cross claims against it on the basis of General Obligations Law § 9-103. Supreme Court denied the motion and also denied Owasco's subsequent motion for renewal. Owasco has appealed from both orders.

We reverse the denial of Owasco's motion for summary judgment. General Obligations Law § 9-103(1)(a) provides in pertinent part that:

* * * an owner, lessee or occupant of premises * * * 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.

In denying Owasco's motion, Supreme Court found the statute inapplicable insofar as it determined that the land in question was not the type of remote, undeveloped land that fell within the statute's purview. In so doing, the court relied on Russo v. City of New York, 116 A.D.2d 240, 500 N.Y.S.2d 673. That case held that General Obligations Law § 9-103 was never intended to protect owners of premises situated in or near highly developed areas.

In Iannotti v. Consolidated Rail Corp., 137 A.D.2d 62, 64, 528 N.Y.S.2d 177, however, this court specifically declined to follow Russo and concluded that the size or shape of the property and its proximity to highly developed areas did not automatically preclude application of General Obligations Law § 9-103. If the land is of the type that would ordinarily be used by people engaged in the statute's listed activities, the statute applies (see, id., at 64, 528 N.Y.S.2d 177; see also, Ferres v. City of New Rochelle, 68 N.Y.2d 446, 453, 510 N.Y.S.2d 57, 502 N.E.2d 972). Thus, the question in this case is whether the property was of a type that would ordinarily be used for the operation of a motorized vehicle for recreational purposes. In our view, this requirement was satisfied. The railway bed was not maintained or used for the commercial operation of Owasco (cf., Iannotti v. Consolidated Rail Corp., supra, 137 A.D.2d at 67, 528 N.Y.S.2d 177). The land was vacant and the railway tracks had been removed. No railway employees used it. Plaintiff himself admitted that it was used by members of the general public for ingress and egress and as a short cut on a nearly daily basis and was used by all types of vehicles at all times of the year. Thus, since the railway bed was of the type of property that could be used for motorized vehicle riding, the case is governed by General Obligations Law § 9-103.

Plaintiff, however, argues that the statute still does not apply since he was not riding his ATV for recreational purposes. Specifically, he claims that he was riding it to a friend's home for the purpose of repairing his (plaintiff's) van so that the van could be licensed and used by plaintiff for needed public highway transportation. In addressing this argument, we note that it is only in cases, such as this situation, where a motorized vehicle is involved that it is necessary to determine whether the activity was for recreational purposes (see, Seminara v. Highland Lake Bible Conference, 112 A.D.2d 630, 632, 492 N.Y.S.2d 146). Although the term "recreational purpose" is not defined, General Obligations Law § 9-103(2)(b) does state that the statute does not apply to activities conducted for which a consideration was paid to the owner (see, Schoonmaker v. Ridge Runners Club 99, 119 A.D.2d 858, 500 N.Y.S.2d 562, appeal dismissed, 68 N.Y.2d 807, 506 N.Y.S.2d 1037, 498 N.E.2d 437). Furthermore, the statute's purpose was to encourage landowners to open their property for use by the public for the limited number of outdoor activities set forth in the statute (see, Ferres v. City of New...