Opinion
# 2017-032-029 Claim No. 121331 Motion No. M-89833
05-11-2017
TRAVIS HINCHEY v. THE STATE OF NEW YORK and NEW YORK STATE OFFICE OF PARKS, RECREATION & HISTORICAL PRESERVATION
David J. Pajak, Esq. Kaufman Dolowich & Voluck, LLP By: Michael V. Desantis, Esq. David J. Pajak, Esq.
Synopsis
The State's motion for summary judgment based upon its defense of qualified immunity under General Obligations Law § 9-103 is granted.
Case information
| UID: | 2017-032-029 |
| Claimant(s): | TRAVIS HINCHEY |
| Claimant short name: | HINCHEY |
| Footnote (claimant name) : | |
| Defendant(s): | THE STATE OF NEW YORK and NEW YORK STATE OFFICE OF PARKS, RECREATION & HISTORICAL PRESERVATION |
| Footnote (defendant name) : | |
| Third-party claimant(s): | |
| Third-party defendant(s): | |
| Claim number(s): | 121331 |
| Motion number(s): | M-89833 |
| Cross-motion number(s): | |
| Judge: | JUDITH A. HARD |
| Claimant's attorney: | David J. Pajak, Esq. |
| Defendant's attorney: | Kaufman Dolowich & Voluck, LLP By: Michael V. Desantis, Esq. |
| Third-party defendant's attorney: | |
| Signature date: | May 11, 2017 |
| City: | Albany |
| Comments: | |
| Official citation: | |
| Appellate results: | |
| See also (multicaptioned case) |
Decision
Claimant filed the instant claim seeking damages from the State of New York for injuries that he sustained on December 18, 2010, while snowmobiling on a trail in the Town of Martinsburg, Lewis County. Specifically, claimant alleges that, at approximately 3:00 p.m. on that date, his snowmobile struck a low-lying boulder or large rock, which was concealed by snow within the operating path of the trail, and that he was thrown from the vehicle, suffering numerous severe injuries. Claimant asserts that defendant, as the owner of the premises in question, was negligent in failing to maintain the trail and keep it in a reasonably safe condition. Following joinder of issue and the completion of discovery, defendant moves for summary judgment on the basis that it is immune from liability pursuant to General Obligations Law § 9-103, which motion claimant opposes.
"Summary judgment is a drastic remedy that 'should not be granted where there is any doubt as to the existence of [triable] issues [of fact], or where the issue is arguable'" (Hall v Queensbury Union Free Sch. Dist., 147 AD3d 1249, 1250 [3d Dept 2017], quoting Sillman v Twentieth Century-Fox Film Corp., 3 NY2d 395, 404 [1957]; see Rotuba Extruders v Ceppos, 46 NY2d 223, 231 [1978]; Stukas v Streiter, 83 AD3d 18, 23 [2d Dept 2011]). The proponent of the motion "must make a prima facie showing of entitlement to judgment as a matter of law, tendering sufficient evidence to demonstrate the absence of any material issues of fact. Failure to make such prima facie showing requires a denial of the motion, regardless of the sufficiency of the opposing papers" (Alvarez v Prospect Hosp., 68 NY2d 320, 324 [1986] [citations omitted]; see Zuckerman v City of New York, 49 NY2d 557, 562 [1980]; Robinson v Kingston Hosp., 55 AD3d 1121, 1123 [3d Dept 2008]). "Once this showing has been made, however, the burden shifts to the party opposing the motion for summary judgment to produce evidentiary proof in admissible form sufficient to establish the existence of material issues of fact which require a trial of the action" (Alvarez v Prospect Hosp., 68 NY2d at 324; see Town of Kirkwood v Ritter, 80 AD3d 944, 945-946 [3d Dept 2011]). In considering the motion, the Court "must view the evidence in a light most favorable to the nonmoving party and accord that party the benefit of every reasonable inference from the record proof, without making any credibility determinations" (Black v Kohl's Dept. Stores, Inc., 80 AD3d 958, 959 [3d Dept 2011]; see Winne v Town of Duanesburg, 86 AD3d 779, 780-781 [3d Dept 2011]).
General Obligations Law § 9-103, also known as the recreational use statute, "grants immunity for ordinary negligence to landowners who permit members of the public to come on their property to engage in several enumerated recreational activities" (Sena v Town of Greenfield, 91 NY2d 611, 615 [1998] [internal quotation marks and citations omitted]; accord Albright v Metz, 88 NY2d 656, 661-662 [1996]; Bragg v Genesee County Agric. Socy., 84 NY2d 544, 546-547 [1994]). As relevant here, the statute provides that "an owner . . . of premises . . . owes no duty to keep the premises safe for entry or use by others for . . . snowmobile operation . . . , or to give warning of any hazardous condition or use of or structure or activity on such premises to persons entering for such purposes" (GOL § 9-103 [1] [a]). The statute further provides that such an owner "does not thereby (1) extend any assurance that the premises are safe for such purpose, or (2) constitute the person to whom permission is granted an invitee to whom a duty of care is owed, or (3) assume responsibility for or incur liability for any injury to person or property caused by any act of persons to whom the permission is granted" (GOL § 9-103 [1] [b]). "The overall purpose of GOL § 9-103 recognizes the value and importance to New Yorkers of pursuing recreational activities, so that a statute immunizing landowners from liability arising from recreational activities will result in more properties being made available for such uses" (Morales v Coram Materials Corp., 51 AD3d 86, 89 [2d Dept 2008]; see Ferres v City of New Rochelle, 68 NY2d 446, 451 [1986]; Perrott v City of Troy, 261 AD2d 29, 31 [3d Dept 1999]).
However, the limitation of liability extended by General Obligations Law § 9-103 is not absolute. For example, an owner is not absolved of liability for a "willful or malicious failure to guard, or to warn against, a dangerous condition, use, structure or activity" (GOL § 9-103 [2] [a]). Furthermore, the statute does not apply where permission to pursue the recreational activity was granted for consideration (see GOL § 9-103 [2] [b]), or where a municipality "operates and maintains a supervised public park and recreational facility for the activities enumerated" (Perrott v City of Troy, 261 AD2d at 31 [emphasis in original]; see Ferres v City of New Rochelle, 68 NY2d at 449; Clark v State of New York, 178 AD2d 908, 909 [3d Dept 1991]). "Whether the statutory immunity applies 'depends not only on the character of the land itself, but also on the role of the landowner in relation to the public's use of the property, particularly in those cases involving a governmental landowner'" (Perrott v City of Troy, 261 AD2d at 31, quoting Wilkins v State of New York, 165 AD2d 514, 517 [3d Dept 1991]; see Sena v Town of Greenfield, 91 NY2d at 614-616; Clark v State of New York, 178 AD2d at 909).
On a motion for summary judgment, "a question of fact is raised under the recreational use statute if there is evidence that the defendant does not own, lease, or occupy the land where the accident occurred, or that the [claimant] was not engaged in a listed recreational activity, or that the property was not suitable for the recreational use" (Morales v Coram Materials Corp., 51 AD3d at 90; see Perrott v City of Troy, 261 AD2d at 31). Here, however, it is undisputed that, at the time of his accident, claimant was snowmobiling on a trail in the Tug Hill Trail System, which is owned by the State, that the trail in question was physically conducive to such activity, and that it had been previously used by members of the public for such purpose (Claim ¶ 5; Defendant's Exhibits E, p. 93; H, p. 33; I, p. 27; J, p. 36-37). Accordingly, in order to raise an issue of fact on the instant motion, claimant must put forth evidence that a defined exception to General Obligations Law § 9-103 applies (see Morales v Coram Materials Corp., 51 AD3d at 90; Scuderi v Niagara Mohawk Power Corp., 243 AD2d 1049, 1049-1050 [3d Dept 1997]). Claimant posits two primary arguments in this regard: (1) that the statute is inapplicable because claimant was granted permission to pursue the recreational activity for consideration in the form of a snowmobile registration fee paid to the Department of Motor Vehicles (hereinafter DMV); and (2) that the State is not immune from liability inasmuch as it operates, maintains, and/or supervises the Tug Hill Trail System for the specific purpose of snowmobiling. The Court will address each argument in turn.
With respect to the first exception, the immunity guaranteed by General Obligations Law § 9-103 "does not apply if the landowner exacts a charge for use of the property" (Schoonmaker v Ridge Runners Club 99, 119 AD2d 858, 860 [3d Dept 1986]; see General Obligations Law § 9-103 [2] [b]; Sega v State of New York, 60 NY2d 183, 186 [1983]). Thus, in the case at bar, the Court must determine "whether defendant required payment of a fee for use of its property for [snowmobiling], and thus whether there is a nexus between the fee paid for the use of the property and the [snowmobiling] activity" (Jones v Lei-Ti Too, LLC, 45 AD3d 1468, 1469 [4th Dept 2007] [internal quotation marks and citation omitted]; see Samuels v High Braes Refuge, Inc., 8 AD3d 1110, 1111 [4th Dept 2004]; Heminway v State Univ. of N.Y., 244 AD2d 979, 980 [4th Dept 1997], lv denied 91 NY2d 809 [1998]; Seminara v Highland Lake Bible Conference, 112 AD2d 630, 633 [3d Dept 1985]).
Claimant contends that the State forfeited its immunity pursuant to this exception by requiring all snowmobilers to register their vehicles with and pay annual snowmobile registration fees to DMV. In support of that contention, claimant submits the deposition of Christopher Fallon, Director of the Snowmobile Unit of the New York State Office of Parks, Recreation and Historic Preservation (hereinafter OPRHP), who stated that snowmobiles must be registered with DMV in order to be operated on State trails or other public property (Claimant's Exhibit G, p. 13). Fallon explained that, in order to register a snowmobile with DMV, owners must pay a $100 registration fee, $90 of which is transferred directly to the Snowmobile Unit and placed in "a state trail development fund" (Claimant's Exhibit G, p. 12-13). The money in the fund is then used to reimburse counties and municipalities for their grooming and maintenance of the trails through local snowmobile clubs (Claimant's Exhibit G, p. 12-13, 27). Fallon stated that one of the local clubs responsible for maintaining the trails in the Tug Hill Trail System is Valley Snow Travelers of Lewis County (hereinafter VST) (Claimant's Exhibit G, p. 24; Defendant's Exhibit J, p. 19-20). When asked whether OPRHP or DMV assists local clubs with the maintenance and/or grooming of the trails, Fallon responded in the negative (Claimant's Exhibit G, p. 27). With respect to the State's enforcement of DMV's registration requirement, claimant stated during his deposition that the State Police sometimes stop snowmobilers "at main intersections to make sure everyone is properly insured and registered and riding legally on the trails" (Claimant's Exhibit K, p. 67). Claimant conceded, however, that entry onto Tug Hill Trail System is free of charge, the trails are open 24 hours a day, and there is no pass or membership required to access any of the trails in said system (Claimant's Exhibit K, p. 43).
Fallon noted that snowmobile owners who belong to a local snowmobile club pay a reduced registration fee of $45 to DMV, $35 of which is allotted to the trail development fund (Claimant's Exhibit G, p. 13).
As further discussed below, "grooming" is a process by which snow is compacted and leveled by way of a tractor dragging a piece of packing equipment along a trail (Defendant's Exhibit K, p. 19). --------
Claimant contends that, in light the foregoing evidence regarding the consideration that he paid to register his snowmobile with DMV and the potential fines that could arise from his noncompliance with DMV's registration requirement, the State is not entitled to the immunity provided under General Obligations Law § 109-3. The Court disagrees, finding that claimant has failed to prove the requisite nexus between the registration fee and the snowmobiling activity that led to his accident. In an analogous case, the Fourth Department held that registration fees paid by the plaintiff and other snowmobile permit holders to the Town of Webb, New York did not trigger the consideration exception in the recreational use statute because the plaintiff "was using the premises free of charge" (Bowles v Kawasaki Motor Corp. USA, 179 AD2d 299, 302 [4th Dept 1992]). Similarly, in a case involving a sledding accident on a college campus, the Second Department found that the plaintiff failed to raise a triable issue of fact that his payment of a student activity fee and/or tuition constituted "consideration" for his use of a hill on the property (Powderly v Colgate Univ., 248 AD2d 365, 365 [2d Dept 1998]). Relying on such precedent, the Supreme Court, Erie County (Siwek, J.), recently found that neither the payment of snowmobile registration fees to DMV nor to a local snowmobile club constituted sufficient consideration to trigger the exception in General Obligations Law § 109-3, which finding was affirmed by the Fourth Department (Zilliox v Western N.Y. Snowmobile Club of Boston, Inc., Sup Ct, Erie County, July 23, 2009, Siwek, J., Index No. 12007-5075, affd for reasons stated below 79 AD3d 1782 [4th Dept 2010]). Accordingly, courts have consistently rejected the argument that payment of a nominal fee constitutes sufficient consideration to invoke an exception to the immunity guaranteed by the recreational use statute. The Court finds the same reasoning to be applicable in this case since, as demonstrated by the deposition testimony of claimant and Fallon, the payment of a registration fee to DMV is not sufficiently tied to claimant's entry into the Tug Hill Trail System or the snowmobile activity that led to his accident (see Powderly v Colgate Univ., 248 AD2d at 365; Heminway v State Univ. of N.Y., 244 AD2d at 980; Bowles v Kawasaki Motor Corp. USA, 179 AD2d at 302; compare Jones v Lei-Ti Too, LLC, 45 AD3d at 1469; Schoonmaker v Ridge Runners Club 99, 119 AD2d at 860).
Turning then to the question of whether the State operates, maintains, and/or supervises the Tug Hill Trail System for the specific purpose of snowmobiling, it is well settled that General Obligations Law § 109-3 does not serve "to immunize a municipality from liability for its failure to fulfill its duty of reasonable care in the operation and maintenance of a supervised public park and recreational facility" (Sena v Town of Greenfield, 91 NY2d at 615-16; see Ferres v City of New Rochelle, 68 NY2d at 452; Perrott v City of Troy, 261 AD2d at 31). "In such a case, the municipality has already assumed a duty to act reasonably in maintaining the facility in a reasonably safe condition in view of all the circumstances, and to extend it immunity under section 9-103 in its supervised recreational facility would lead to the anomalous result of defendant's liability for injuries suffered there by recreationists depending upon whether the recreationist was engaged in one of the activities which happens to be enumerated in the statute" (Sena v Town of Greenfield, 91 NY2d at 616 [citations omitted]; see Ferres v City of New Rochelle, 68 NY2d at 454; Preston v State of New York, 59 NY2d 997, 998 [1983]). Accordingly, "[w]hen determining whether General Obligations Law § 9-103 applies in a matter involving a government landowner, the character of the land and the role of the landowner in relation to the public's use of the property must be examined" (Keppler v Town of Schroon, 267 AD2d 745, 746-747 [3d Dept 2004] [internal quotation marks and citation omitted]). To that end, "[a] municipal facility is generally found to be supervised and thus outside the protection of § 9-103 when the recreational activity causing injury to the plaintiff was encouraged, regulated, or promoted by the municipality" (McKown v Town of Waterford, 31 Misc 3d 1207 [A], *2 [Sup Ct, Saratoga County 2011]; see Sena v Town of Greenfield, 91 NY2d at 616; Baker v County of Oswego, 77 AD3d 1348, 1349 [4th Dept 2010]; Schiff v State of New York, 31 AD3d 526, 528-529 [2d Dept 2006]; Keppler v Town of Schroon, 267 AD2d at 746-747).
Here, the Court finds that the Tug Hill Trail System qualifies as an unsupervised public park, and defendant is therefore entitled to the immunity afforded by General Obligations Law § 9-103 (see McKown v Town of Waterford, 31 Misc 3d 1207 [A] at *3). Even viewing the evidence in a light most favorable to claimant and according him the benefit of every reasonable inference from the record proof, it is clear that defendant does not perform plowing or grading of the area in question, or provide monitors or employees assigned to supervise or regulate any snowmobiling activities (see Perrott v City of Troy, 261 AD2d at 31-32; Stento v State of New York, 245 AD2d at 772; Clark v State of New York, 178 AD2d at 909; compare Sena v Town of Greenfield, 91 NY2d at 616-617; Ferres v City of New Rochelle, 68 NY2d at 452-454). The specific trail on which claimant's accident occurred is located at or near the intersection of French Road and Toole Road, which is on the edge of the Lesser Wilderness State Forest in Lewis County (Bill of Particulars ¶ 7). Claimant described the area as "very wooded" and acknowledged that it is used exclusively for snowmobiling (Claimant's Exhibit K, p. 93). Additionally, as noted above, it is undisputed that defendant did not charge a fee to the public for use of the Tug Hill Trail System for snowmobiling activity, and there is no pass or membership required to access any of the trails in said system (Claimant's Exhibit K, p. 43). Furthermore, the Tug Hill Trail System contains no formal recreational facilities of any kind, and defendant provided no onsite supervision at anytime (see Perrott v City of Troy, 261 AD2d at 31-32; Bowles v Kawasaki Motor Corp. USA, 179 AD2d at 302). With respect to maintenance of the trails, according to William Tarasek, President of VST, as of the date of claimant's accident, VST had not groomed or performed any maintenance on the area in question due to a lack of adequate snowfall in the region (Defendant's Exhibit J, p. 19-20, 36-37). VST's Vice President, Brian Gillette, confirmed that the first grooming for the winter of 2010-2011 occurred on January 12, 2011, nearly one month after claimant's accident (Defendant's Exhibit K, p. 57). Thus, to the extent that claimant argues that defendant "maintained" the area in question by delegating such task to VST, any such maintenance was clearly minimal, especially at the time of claimant's accident (see Perrott v City of Troy, 261 AD2d at 31-32; Stento v State of New York, 245 AD2d 771, 772 [3d Dept 1997], lv denied 92 NY2d 802 [1998]).
In sum, the Court finds that the foregoing evidence reveals that, while defendant permits snowmobiling in the Tug Hill Trail System, "it does not actively encourage that activity" (Perrott v City of Troy, 261 AD2d at 31-32; see Clark v State of New York, 178 AD2d at 909; compare Sena v Town of Greenfield, 91 NY2d at 616-617; Ferres v City of New Rochelle, 68 NY2d at 452-454). Accordingly, "[f]ailing to confer immunity here might well induce defendant and other municipalities to actively discourage or prohibit the general public from engaging in unsupervised, statutorily enumerated recreational activities such as [snowmobiling] during the winter months, in direct contravention of the legislative purpose underlying General Obligations Law § 9-103" (Perrott v City of Troy, 261 AD2d at 33; see generally Sena v Town of Greenfield, 91 NY2d at 616-617; Ferres v City of New Rochelle, 68 NY2d at 452-454). Thus, based upon the facts of this case, defendant is conferred immunity from liability pursuant to General Obligations Law § 9-103 (see Perrott v City of Troy, 261 AD2d at 32-33; Scuderi v Niagara Mohawk Power Corp., 243 AD2d at 1049-1050; Bowles v Kawasaki Motor Corp. USA, 179 AD2d at 302).
Accordingly, it is hereby
ORDERED, that defendant's motion for summary judgment (M-89833) is granted, and the claim (no. 121331) is dismissed.
May 11, 2017
Albany, New York
JUDITH A. HARD
Judge of the Court of Claims Papers Considered: 1. Notice of Motion, dated January 17, 2017; Affirmation in Support of Motion for Summary Judgment, affirmed by Michael V. DeSantis, Esq., on January 17, 2017, with Exhibits A-P annexed thereto; and Memorandum of Law in Support of Motion for Summary Judgment, received on January 13, 2017. 2. Affirmation of Counsel in Response to Motion for Summary Judgment, affirmed by David J. Pajak, Esq., on February 13, 2017, with Exhibits A-R annexed thereto; and Memorandum of Law on Behalf of Claimant, dated February 17, 2017. 3. Reply Memorandum of Law in Further Support of Motion for Summary Judgment, dated March 13, 2017, with Appendix.