Rivera v. Glen Oaks Village Owners, Inc.

41 A.D.3d 817, 839 N.Y.S.2d 183
CourtAppellate Division of the Supreme Court of the State of New York
DecidedJune 26, 2007
StatusPublished
Cited by26 cases

This text of 41 A.D.3d 817 (Rivera v. Glen Oaks Village Owners, Inc.) is published on Counsel Stack Legal Research, covering Appellate Division of the Supreme Court of the State of New York primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Rivera v. Glen Oaks Village Owners, Inc., 41 A.D.3d 817, 839 N.Y.S.2d 183 (N.Y. Ct. App. 2007).

Opinion

In an action to recover damages for personal injuries, the defendant appeals from an order of the Supreme Court, Queens County (Polizzi, J.), entered September 6, 2006, which denied its motion for summary judgment dismissing the complaint.

Ordered that the order is reversed, on the law, with costs, and the defendant’s motion for summary judgment dismissing the complaint is granted.

On March 7, 2002 the plaintiff and two of his friends went bicycling. As they rode along 261st Street at the intersection of 72nd Road in Queens County, the two friends, with the plaintiff following them, turned off the road and onto a dirt trail located in a two-acre wooded area, which was part of a large residential cooperative community. The trail was approximately 500 feet long and 10 feet wide, and, as the plaintiff described it, “bumpy.” After traveling about 30 to 40 feet on the trail, the plaintiff came upon a hole in the ground, approximately two feet wide and three feet deep. Unable to avoid the hole, the front wheel of the plaintiffs bicycle went into the hole, causing him to be thrown over the bicycle’s handlebars and into the hole. The plaintiff saw the hole “maybe a second” before he fell into it. As a result of his fall, the plaintiff was injured.

[818]*818General Obligations Law § 9-103, commonly referred to as the “recreational use statute,” provides that “an owner, lessee or occupant of premises . . . owes no duty to keep the premises safe for entry or use by others for,” among other things, “bicycle riding . . . or to give warning of any hazardous condition or use of or structure or activity on such premises to persons entering for such [a] purpose.” The “sole purpose” of the statute is “to induce property owners, who might otherwise be reluctant to do so for fear of liability, to permit persons to come on their property to pursue specified activities,” such as bicycle riding (Ferres v City of New Rochelle, 68 NY2d 446, 451 [1986]). Thus, in return for opening up their lands for public use, property owners are provided immunity from liability (see Iannotti v Consolidated Rail Corp., 74 NY2d 39, 43 [1989]). The rationale for the statute is that “outdoor recreation is good; New Yorkers need suitable places to engage in outdoor recreation; [and] more places will be made available if property owners do not have to worry about liability when recreationists come onto their land” (Bragg v Genesee County Agric. Socy., 84 NY2d 544, 550 [1994]). The statute applies when (1) the plaintiff is engaged in one of the activities identified in General Obligations Law § 9-103 and (2) the plaintiff is recreating on land suitable for that activity (see Albright v Metz, 88 NY2d 656, 662 [1996]; Bragg v Genesee County Agric. Socy., supra at 551-552).

Here, it is undisputed that the plaintiff was engaged in bicycle riding, an activity included within General Obligations Law § 9-103, when he was injured. Thus, the first prong of the test is satisfied. The second prong of the test is satisfied when the property is the type “which is not only physically conducive to the particular activity or sport but is also a type which would be appropriate for public use in pursuing the activity as recreation” (Albright v Metz, supra at 662 [internal quotation marks omitted]; see Iannotti v Consolidated Rail Corp., supra at 45). The suitability test “is a question of statutory interpretation, and is, therefore, a question of law for the Court” (Bragg v Genesee County Agric. Socy., supra at 552; Hulett v Niagara Mohawk Power Corp., 1 AD3d 999, 1001 [2003]).

Here, a dirt trail, measuring 500 feet long and 10 feet wide, located within a wooded area that is undeveloped and has not been designated for any other use is appropriate for bicycle riding particularly in a large urban setting where open space is limited (see Bragg v Genesee County Agric. Socy., supra at 550; Bryant v Smith, 278 AD2d 576, 577 [2000]; McGregor v Middletown School Dist. No. 1, 190 AD2d 923, 924 [1993]; Wiggs v Panzer, 187 AD2d 504, 505 [1992]; Jacobs v Northeastern [819]*819Indus. Park, 181 AD2d 720, 721-722 [1992]; Obenauer v Broome County Beaver Lake Cottagers Assn., 170 AD2d 739, 741 [1991]).

“A substantial indicator that property is physically conducive to the particular activity is whether recreationists have used the property for that activity in the past; such past use by participants in the sport manifests the fact that the property is physically conducive to it” (Albright v Metz, supra at 662 [internal quotation marks omitted]). In support of its motion for summary judgment dismissing the complaint, the defendant submitted affidavits from three residents attesting that they had observed bicyclists use the dirt trail prior to the plaintiffs accident. However, the Supreme Court refused to consider these affidavits on the ground that the defendant had failed to disclose the affiants’ identities pursuant to the plaintiffs demand that he be provided the names and addresses of all “notice” and “occurrence” witnesses. While these three affiants were only witnesses to prior use of the path, they were analogous to “notice” witnesses. Further, they possessed information “material and necessary” to the “prosecution or defense of the action,” that is, whether there had been prior use of the dirt trail by bicyclists, which, if established, would entitle the defendant to immunity (see CPLR 3101 [a]; Zellman v Metropolitan Transp. Auth., 40 AD2d 248, 250 [1973]). In accordance with the liberal policy underlying CPLR 3101, the defendant should have disclosed the identities of these witnesses (see Zellman v Metropolitan Transp. Auth., supra at 251; Zayas v Morales, 45 AD2d 610, 613 [1974]). Accordingly, it was not an improvident exercise of discretion for the Supreme Court to refuse to consider these affidavits (see Andujar v Benenson Inv. Co., 299 AD2d 503 [2002]).

In any event, the use of the trail by the plaintiffs friends on the day in question, along with its physical characteristics, established that it was physically conducive for bicycling (see Bryant v Smith, supra at 576-577; Fenton v Consolidated Edison Co. of N.Y., 165 AD2d 121, 127-128 [1991]). A dirt trail is the “sort” of property “which the Legislature would have envisioned as being opened up to the public for [bicycling] as a result of the inducement offered in the statute” (Iannotti v Consolidated Rail Corp., supra at 45).

The plaintiffs contention that the dirt trail was unsuitable for bicycling because of the presence of large holes, mounds of dirt, and other allegedly dangerous conditions is without merit. “ '[T]he presence or absence of a dangerous condition is not the benchmark for determining suitability’ ” (Hinchliffe v Orange & Rockland Utils. Co., 216 AD2d 528, 529 [1995], quoting Mc[820]*820Gregor v Middletown School Dist. No. 1, supra at 924; see Fenton v Consolidated Edison Co. of N.Y., supra at 126; Iannotti v Consolidated Rail Corp., supra at 49 [Wachtler, Ch. J., concurring]; Wiggs v Panzer, supra at 505). Nor does the presence of the dirt trail in a large private residential cooperative community render it unsuitable for bicycling, as the “recreational use statute” has been applied “liberally” to “public and private land . . . , to rural or urban property, whether developed or undeveloped” (Bragg v Genesee County Agric. Socy, supra at 548;

Free access — add to your briefcase to read the full text and ask questions with AI

Related

Decius v. 1362 Ocean, LLC
202 N.Y.S.3d 163 (Appellate Division of the Supreme Court of New York, 2023)
Fritz v. Walden Playboys M.C. Inc.
217 A.D.3d 1293 (Appellate Division of the Supreme Court of New York, 2023)
Klein v. Quinnipiac University
Connecticut Appellate Court, 2019
Awai v. Benchmark Constr. Serv., Inc.
2019 NY Slip Op 3752 (Appellate Division of the Supreme Court of New York, 2019)
Rabiea v. Darwish
2019 NY Slip Op 1627 (Appellate Division of the Supreme Court of New York, 2019)
M.P. v. Mineola Union Free Sch. Dist.
2018 NY Slip Op 8119 (Appellate Division of the Supreme Court of New York, 2018)
Cummings v. Manville
2017 NY Slip Op 5530 (Appellate Division of the Supreme Court of New York, 2017)
Palm v. Tuckahoe Union Free School District
141 A.D.3d 635 (Appellate Division of the Supreme Court of New York, 2016)
Lewanoni v. Liotine
125 A.D.3d 941 (Appellate Division of the Supreme Court of New York, 2015)
Tahsin Mamati v. City of New York Parks & Recreation
123 A.D.3d 671 (Appellate Division of the Supreme Court of New York, 2014)
Palmer v. City of New York
109 A.D.3d 526 (Appellate Division of the Supreme Court of New York, 2013)
O'Neill v. Town of Dover
100 A.D.3d 845 (Appellate Division of the Supreme Court of New York, 2012)
Steinsvaag v. City of New York
96 A.D.3d 932 (Appellate Division of the Supreme Court of New York, 2012)
HYDE, RENEE v. NORTH COLLINS CENTRAL SCHOOL DISTRI
Appellate Division of the Supreme Court of New York, 2011
Hyde v. North Collins Central School District
83 A.D.3d 1557 (Appellate Division of the Supreme Court of New York, 2011)
Yax v. Development Team, Inc.
67 A.D.3d 1003 (Appellate Division of the Supreme Court of New York, 2009)
Farley v. Town of Rhinebeck
65 A.D.3d 1279 (Appellate Division of the Supreme Court of New York, 2009)
Cotty v. Town of Southampton
64 A.D.3d 251 (Appellate Division of the Supreme Court of New York, 2009)
Twomey v. Rosenthal
52 A.D.3d 693 (Appellate Division of the Supreme Court of New York, 2008)
Finnocchiaro v. Napolitano
52 A.D.3d 463 (Appellate Division of the Supreme Court of New York, 2008)

Cite This Page — Counsel Stack

Bluebook (online)
41 A.D.3d 817, 839 N.Y.S.2d 183, Counsel Stack Legal Research, https://law.counselstack.com/opinion/rivera-v-glen-oaks-village-owners-inc-nyappdiv-2007.