Celia v. Town of Whitestown

71 A.D.3d 1427, 896 N.Y.S.2d 774

Opinions

Appeal from an order of the Supreme Court, Oneida County (Norman I. Siegel, A.J.), entered April 15, 2009 in a personal injury action. The order denied defendant’s motion for summary judgment dismissing the complaint.

It is hereby ordered that the order so appealed from is affirmed without costs.

Memorandum: Plaintiff commenced this action to recover damages for injuries that he allegedly sustained during a sledding accident in a park owned by defendant. Contrary to the contention of defendant, Supreme Court properly denied its motion for summary judgment dismissing the complaint. General Obligations Law § 9-103 does not “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 611, 615-616 [1998]). Rather, that statute provides immunity to, inter alia, landowners who permit the public to engage in certain enumerated recreational activities on their property, including sledding (see § 9-103 [1] [a], [b]). “When the landowner is a government entity, . . . the appropriate inquiry is the role of the landowner in relation to the public’s use of the property in determining whether it is appropriate to apply the limited liability provision of [that statute]” (Quackenbush v City of Buffalo, 43 AD3d 1386, 1387 [2007] [internal quotation marks omitted]). Here, “the immunity from liability afforded by that statute . . . does not apply to defendant . . . because ‘the hill where the accident occurred was part of a supervised public park not within the ambit of General Obligations Law § 9-103 immunity’ ” (Rashford v City of Utica, 23 AD3d 1000, 1001 [2005], quoting Sena, 91 NY2d at 613).

All concur except Peradotto and Lindley, JJ., dissent and vote to reverse in accordance with the following memorandum.