O'Neill v. Town of Dover

Full title: Kelli O'NEILL, appellant, v. TOWN OF DOVER, respondent.

Court: Supreme Court, Appellate Division, Second Department, New York.

Date published: Nov 21, 2012

100 A.D.3d 845 (N.Y. App. Div. 2012)

955 N.Y.S.2d 606

2012 N.Y. Slip Op. 7969

Opinion

2012-11-21

Kelli O'NEILL, appellant, v. TOWN OF DOVER, respondent.

Finkelstein & Partners, LLP, Newburgh, N.Y. (Andrew L. Spitz of counsel), for appellant. McCabe & Mack LLP (Congdon, Flaherty, O'Callaghan, Reid, Donlon, Travis & Fishlinger, Uniondale, N.Y. [Gregory A. Cascino], of counsel), for respondent.

REINALDO E. RIVERA

Finkelstein & Partners, LLP, Newburgh, N.Y. (Andrew L. Spitz of counsel), for appellant. McCabe & Mack LLP (Congdon, Flaherty, O'Callaghan, Reid, Donlon, Travis & Fishlinger, Uniondale, N.Y. [Gregory A. Cascino], of counsel), for respondent.
REINALDO E. RIVERA, J.P., DANIEL D. ANGIOLILLO, CHERYL E. CHAMBERS, and SHERI S. ROMAN, JJ.

In an action to recover damages for personal injuries, the plaintiff appeals from an order of the Supreme Court, Dutchess County (Brands, J.), dated June 28, 2011, which granted the defendant's motion for summary judgment dismissing the complaint and denied her cross motion for summary judgment dismissing the defense of immunity pursuant to General Obligations Law § 9–103.

ORDERED that the order is affirmed, with costs.

In support of its motion for summary judgment dismissing the complaint, the defendant established its prima facie entitlement to judgment as a matter of law on the ground of its immunity from liability pursuant to General Obligations Law § 9–103 with evidence that it owned the property upon which the plaintiff's accident occurred, the plaintiff was engaged in one of the recreational activities specified by the statute, namely, hiking, and the property was suitable for that recreational use ( see Albright v. Metz, 88 N.Y.2d 656, 662, 649 N.Y.S.2d 359, 672 N.E.2d 584;Fredette v. Town of Southampton, 95 A.D.3d 940, 940–941, 944 N.Y.S.2d 206;Rivera v. Glen Oaks Vil. Owners, Inc., 41 A.D.3d 817, 818–819, 839 N.Y.S.2d 183; Olson v. Brunner, 261 A.D.2d 922, 922–923, 689 N.Y.S.2d 833). In opposition, the plaintiff failed to raise a triable issue of fact. Accordingly, the Supreme Court properly granted the defendant's motion for summary judgment dismissing the complaint, and properly denied the plaintiff's cross motion for summary judgment dismissing the defense based on General Obligations Law § 9–103.

The parties' remaining contentions have been rendered academic by our determination.