Bragg v. Genesee County Agricultural Society

198 A.D.2d 794, 604 N.Y.S.2d 384

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: November 19, 1993
• Status: Published

Opinion

—Order unanimously affirmed without costs. Memorandum: While riding his motor bike along a gravel roadway on the property of defendant Genesee County Agricultural Society, plaintiff fell down a 10-foot slope and sustained serious injuries. Plaintiff’s fall occurred where gravel was being excavated from the roadway. The record establishes that, for a number of years, recreational vehicles had used the gravel roadway and land adjacent to the excavation site, an activity enumerated in General Obligations Law § 9-103. The property was physically conducive to that activity and appropriate for public use (see, Iannotti v Consolidated Rail Corp., 74 NY2d 39; Sega v State of New York, 60 NY2d 183; Jacobs v Northeastern Indus. Park, 181 AD2d 720; Fenton v Consolidated Edison Co., 165 AD2d 121, lv denied 78 NY2d 856; Hoffman v Joseph R. Wunderlich, Inc., 147 AD2d 807, lv denied 74 NY2d 612). Plaintiff has failed to present any evidence that defendant Genesee or defendant Lathan acted willfully and maliciously in failing to warn him of the dangers of the excavation to bring him within the exception in General Obligations Law § 9-103 (see, Sega v State of New York, supra; Clark v State of New York, 178 AD2d 908; Fenton v Consolidated Edison Co., supra; Gardner v Owasco Riv. Ry., 142 AD2d 61, 64, lv denied 74 NY2d 606). (Appeal from Order of Supreme Court, Genesee County, Wolf, Jr., J. — Summary Judgment.) Present — Denman, P. J., Balio, Lawton, Doerr and Boehm, JJ.