91 A.D.2d 1133 | N.Y. App. Div. | 1983
— Appeal from an order of the Supreme Court at Special Term (Ford, J.), entered April 26,1982 in Washington County, which denied defendant’s motion for summary judgment dismissing the complaint. Plaintiffs Carol A. Mattison and Stacey R. Fiore were injured on November 18, 1980 at approximately 7:30 p.m. when the snowmobile operated by plaintiff Mattison collided with a bench located on a snow-covered baseball field owned by defendant Hudson Falls Central School District. The bench was made of wood and affixed to the ground with concrete footings and metal pole legs. It had been in place for approximately 11 years and was in good repair. Defendant never gave express permission to plaintiffs to snowmobile on the athletic field and there are conflicting affirmations as to whether the area was posted with signs prohibiting unauthorized vehicles. The board of education adopted a resolution on September 15,1970 which banned the operation of snowmobiles on school property, although plaintiffs contend that they had no knowledge of this resolution. Finally, the public often used the grounds for recreational purposes, including snowmobiling, a practice defendant admittedly was aware of. Plaintiffs commenced this action on April 23, 1981 to recover money damages alleging that defendant negligently, willfully, and/or maliciously failed to guard or warn against what, at the time of the accident, was a “dangerous condition, use, structure or activity” (General Obligations Law, § 9-103, subd 2, par b). Following discovery, defendant moved for summary judgment upon the ground that there are no triable issues of fact. Special Term rendered a decision denying defendant’s motion for summary judgment and finding that questions of fact exist. This appeal ensued. In order to defeat a motion for summary judgment, the opposing party must “produce evidentiary proof in admissible form sufficient to require a trial of material questions of fact” (Zuckerman v City of New York, 49 NY2d 557, 562; see CPLR 3212, subd [b]). In our opinion, plaintiffs have failed to produce such evidence and, accordingly, defendant’s motion for summary judgment should have been granted. In their briefs, all parties labor under the assumption that section 9-103 of the General Obligations Law is applicable. And, indeed, we agree with Special Term that section 9-103 of the General Obligations Law is applicable to this case (see La Carte v New York Explosives Corp., 72 AD2d 873). Under the standard imposed by section 9-103 of the General Obligations Law, plaintiffs have the burden of proving that the bench constituted a dangerous structure, condition or use, and that defendant should have known that it constituted an unreasonable hazard and had reason to believe that a passerby could not have discovered it for himself, giving rise to a duty to warn (see Rock v Concrete Materials, 46 AD2d 300, 303, app dsmd 36 NY2d 772; see, also, Cutway v State of New York, 89 AD2d 406). Accordingly, for plaintiffs to prevail, the proof must show that at the time of the accident the bench was “ ‘a trap’ or an inherently dangerous instrumentality” which was or should have
