Opinion
2011-12-23
Michael A. THOMANN, Plaintiff–Appellant, v. NIAGARA MOHAWK POWER CORPORATION, Doing Business as National Grid, Defendant–Respondent, et al., Defendants.
Smith, Miner, O'Shea & Smith, LLP, Buffalo (R. Charles Miner of Counsel), for Plaintiff–Appellant. Hiscock & Barclay, LLP, Buffalo (David M. Hehr of Counsel), for Defendant–Respondent.
Smith, Miner, O'Shea & Smith, LLP, Buffalo (R. Charles Miner of Counsel), for Plaintiff–Appellant. Hiscock & Barclay, LLP, Buffalo (David M. Hehr of Counsel), for Defendant–Respondent.
PRESENT: SCUDDER, P.J., CENTRA, GREEN, GORSKI, AND MARTOCHE, JJ.
MEMORANDUM:
Plaintiff commenced this action seeking damages for injuries he sustained when he struck a guy wire attached to a utility pole while snowmobiling on a bike path in defendant Town of Amherst. It is undisputed that defendant Niagara Mohawk Power Corporation, doing business as National Grid (Niagara Mohawk), owned the guy wire and that, at the time of the accident, the guy wire was missing its yellow safety shield. Niagara Mohawk moved for summary judgment dismissing the complaint and all cross claims against it, contending that it was immune from liability pursuant to General Obligations Law § 9–103. We conclude that Supreme Court properly granted the motion.
Contrary to plaintiff's contention, Niagara Mohawk had an “authorized presence on the premises” where the accident occurred and thus was an occupant within the meaning of section 9–103(1)(a) ( Albright v. Metz, 88 N.Y.2d 656, 665, 649 N.Y.S.2d 359, 672 N.E.2d 584; see Bush v. Valley Snow Travelers of Lewis County, Inc., 7 Misc.3d 285, 287–288, 790 N.Y.S.2d 350, affd. for reasons stated 27 A.D.3d 1177, 810 N.Y.S.2d 694; Weller v. Colleges of the Senecas, 261 A.D.2d 852, 853, 689 N.Y.S.2d 588, lv. denied 93 N.Y.2d 817, 697 N.Y.S.2d 564, 719 N.E.2d 925; Weller v. Marriott Mgt. Servs. Corp., 238 A.D.2d 888, 661 N.Y.S.2d 108). Contrary to plaintiff's further contention, Niagara Mohawk established that the bike path is “the ‘type of property which is not only physically conducive to [snowmobiling] but is also a type which would be appropriate for public use in pursuing [snowmobiling] as recreation’ ” ( Bragg v. Genesee County Agric. Socy., 84 N.Y.2d 544, 548, 620 N.Y.S.2d 322, 644 N.E.2d 1013; see Iannotti v. Consolidated Rail Corp., 74 N.Y.2d 39, 45–46, 544 N.Y.S.2d 308, 542 N.E.2d 621).
Although it is undisputed that the bike path was held open to the public, that fact does not preclude Niagara Mohawk from relying on the immunity provided by section 9–103(1)(a). First, Niagara Mohawk was not a municipality and, second, the path itself was undeveloped and unsupervised ( see Myers v. State of New York, 11 A.D.3d 1020, 1021, 782 N.Y.S.2d 326; Blair v. Newstead Snowseekers, 2 A.D.3d 1286, 1288–1289, 769 N.Y.S.2d 807, lv. denied 2 N.Y.3d 704, 780 N.Y.S.2d 310, 812 N.E.2d 1260; cf. Ferres v. City of New Rochelle, 68 N.Y.2d 446, 453–454, 510 N.Y.S.2d 57, 502 N.E.2d 972; Celia v. Town of Whitestown, 71 A.D.3d 1427, 1427–1428, 896 N.Y.S.2d 774; Quackenbush v. City of Buffalo, 43 A.D.3d 1386, 1388, 842 N.Y.S.2d 657).
Finally, we conclude that Niagara Mohawk established as a matter of law “that the willful conduct exception [set forth in General Obligations Law § 9–103(2) ] that would void the protection” of section 9–103(1)(a) is inapplicable here ( Blair, 2 A.D.3d at 1289, 769 N.Y.S.2d 807), and plaintiff failed to raise a triable issue of fact on that issue ( see generally Zuckerman v. City of New York, 49 N.Y.2d 557, 562, 427 N.Y.S.2d 595, 404 N.E.2d 718). Although there was evidence that Niagara Mohawk had been advised that the yellow safety shield was missing from the guy wire, that evidence, alone, is insufficient to establish the “high-threshold demonstration by the injured party to show willful intent by the alleged wrongdoer” ( Farnham v. Kittinger, 83 N.Y.2d 520, 529, 611 N.Y.S.2d 790, 634 N.E.2d 162; see § 9–103[2]; Cutway v. State of New York, 60 N.Y.2d 183, 192, 469 N.Y.S.2d 51, 456 N.E.2d 1174, rearg. denied 61 N.Y.2d 670, 472 N.Y.S.2d 1028, 460 N.E.2d 232; Scuderi v. Niagara Mohawk Power Corp., 243 A.D.2d 1049, 1050, 663 N.Y.S.2d 912).
It is hereby ORDERED that the order so appealed from is unanimously affirmed without costs.