Summary
In Sauberan, the landowner's alleged negligent act—telling someone to shoot at a target that could not be seen—was entirely unrelated to any dangerous condition on the property or to the actor's status as landowner.
Summary of this case from Arquette v. State of NYOpinion
May 30, 1997
Present — Denman, P.J., Pine, Callahan, Boehm and Fallon, JJ.
Order unanimously affirmed without costs. Memorandum: In this hunting accident case, Supreme Court properly granted plaintiff's cross motion to dismiss the affirmative defense of defendant Melvin Ohl asserting that Ohl is immune from liability pursuant to General Obligations Law § 9-103. Ohl's alleged liability is not premised upon any condition on the land or upon Ohl's status as owner or occupant of the land. Rather, the action against Ohl is based upon his allegedly improper conduct in telling defendant David Harford to shoot at a target that Ohl could not see. The court properly determined that the conduct of Ohl removes him from the protection afforded by General Obligations Law § 9-103 Gen. Oblig. ( see, Lee v. Long Is. R.R., 204 A.D.2d 280, 282; see also, Ferres v. City of New Rochelle, 68 N.Y.2d 446, 451-452).
We have reviewed the remaining contentions raised on appeal and conclude that they are without merit. (Appeal from Order of Supreme Court, Chautauqua County, Gerace, J. — Dismiss Affirmative Defense.)