McCarthy v. New York State Canal Corp.

• Decision Date: 09 July 1998
• Citation: 675 N.Y.S.2d 254,244 A.D.2d 57
• Parties: , 1998 N.Y. Slip Op. 6925 Linda McCARTHY, Respondent, v. NEW YORK STATE CANAL CORPORATION, Appellant. In the Matter of Linda McCARTHY, Respondent, v. NEW YORK STATE THRUWAY AUTHORITY, Appellant.
• Court: New York Supreme Court — Appellate Division

Page 254

675 N.Y.S.2d 254

244 A.D.2d 57, 1998 N.Y. Slip Op. 6925

Linda McCARTHY, Respondent, v. NEW YORK STATE CANAL CORPORATION, Appellant.

In the Matter of Linda McCARTHY, Respondent, v. NEW YORK STATE THRUWAY AUTHORITY, Appellant.

Supreme Court, Appellate Division Third Department.

July 9, 1998.

Dennis C. Vacco, Attorney-General (Michael S. Buskus of counsel), Albany, for appellant.

Proskin Law Firm (Lisa Anne Proskin of counsel), Albany, for respondent.

Before CARDONA, P.J., CREW, WHITE, YESAWICH and GRAFFEO, JJ.

CARDONA, Presiding Justice.

Appeals (1) from an order of the Court of Claims (McNamara, J.), entered May 27, 1997, which denied the State Canal Corporation's motion for summary judgment dismissing the claim, and (2) from an order of said court, entered September 11, 1997, which granted claimant's application pursuant to Court of Claims Act § 10(6) for permission to file a late notice of claim.

On June 24, 1994, claimant, her friend and her mother drove to the north bank of the Mohawk River, near the Crescent Bridge in the Town of Halfmoon, Saratoga County, to visit with her friend's brother and his family who were fishing in the vicinity of a stone and concrete sea wall, a terminus where people are permitted to dock their boats. Claimant walked out onto the remnants of an old stone aqueduct, which once crossed the Mohawk River, adjacent to the terminal wall to help one of the children untangle her fishing line. As claimant turned to ask the child's father for help, she fell into a hole between the aqueduct and the terminal wall striking her head on an iron capstan or stanchion anchored in the concrete used for tying up watercraft.

Claimant filed a claim for personal injuries against the State Canal Corporation alleging that it was negligent for failing to maintain the premises and for failing to warn claimant of a dangerous and hazardous condition. The Canal Corporation moved for summary judgment dismissing the claim based on the immunity provided by the recreational use statute (see, General Obligations Law § 9-103[1][a] ). The Court of Claims denied the motion holding that the statute did not apply to this particular property. Thereafter, the court granted claimant's motion pursuant to Court of Claims Act § 10(6) to file a late notice of claim against the State Thruway Authority, which had assumed jurisdiction, management and control of the State canal system (see, L 1992, ch 766, § 5). The Canal Corporation and the Thruway Authority appeal.

General Obligations Law § 9-103 protects private as well as government landowners from liability against claims for ordinary negligence brought by members of the public who come on their property to engage in certain enumerated activities (see, Albright v. Metz, 88 N.Y.2d 656, 661-662, 649 N.Y.S.2d 359, 672 N.E.2d 584; Bragg v. Genesee County Agric. Socy., 84 N.Y.2d 544, 546-547, 620 N.Y.S.2d 322, 644 N.E.2d 1013), including fishing (see, General Obligations Law § 9-103[1][a] ). We have noted the significance of examining the landowner's role in relation to the public's use of the property, particularly with respect to government landowners, in determining whether it is appropriate to apply the statute (see, Stento v. State of New York, 245 A.D.2d 771, ----, 665 N.Y.S.2d 471, 472, lv. denied --- N.Y.2d ----, --- N.Y.S.2d ----, --- N.E.2d ---- [June 9, 1998]; Clark v. State of New York, 178 A.D.2d 908, 909, 577 N.Y.S.2d 946). Thus, where a landowner already "operates and maintains a supervised facility for use by the public", the statute may be inapplicable because there is no public purpose to be served in inducing the owner to open his or her land to recreational activities (Ferres v. City New Rochelle, 68 N.Y.2d 446, 510 N.Y.S.2d 57, 502 N.E.2d 972). This was precisely the ground upon which the Court of Claims relied. It found that because members of the public docked boats at the terminal wall, it was a public recreational facility and, therefore, no further public purpose would be served by application of the statute.

Our examination of the record leads us to a contrary conclusion in that there is insufficient proof of supervision on a par with that provided by the municipal parks in Ferres v. City of New Rochelle (supra [various public recreational facilities operated and maintained by a staff of 24] ) and Sena v. Town of Greenfield, 91 N.Y.2d 611, 673 N.Y.S.2d 984, 696 N.E.2d 996 [supervised sledding hill]. Here, uncontradicted evidence shows that while the public is permitted to engage in fishing from the terminal wall, without charge (see, General Obligations Law § 9-103[2][b] ), neither that activity nor use of the site for that purpose is under the supervision of the Canal Corporation or Thruway Authority. In our view, without the additional inducement of liability protection, the Canal Corporation and the Thruway Authority would no doubt feel constrained to end the public's use of the terminal wall for fishing. Thus, we find that "application of General Obligations Law § 9-103 'is appropriate and consistent with the purpose of the legislation' " (Stento v. State of New York, supra, 665 N.Y.S.2d at 472, quoting Clark v. State of New York, supra, at 910, 577 N.Y.S.2d 946) to provide the public with more places to engage in this particular recreational activity (see, Bragg v. Genesee County Agric. Socy., supra, at 550, 620 N.Y.S.2d 322, 644 N.E.2d 1013; Iannotti v. Consolidated Rail Corp., 74 N.Y.2d 39, 44, 45, 544 N.Y.S.2d 308, 542 N.E.2d 621).

We now consider whether the statute affords liability protection for the landowners under the particular circumstances of this case. The statute immunizes a landowner from liability when " ' * * * (1) the plaintiff is engaged in one of the activities identified in section...