Morales v. Coram Materials Corp.Morales v. Coram Materials Corp.
Second Department, March 11, 2008
Steven Cohn, P.C., Carle Place (Susan E. Dantzig of counsel), for appellant.
Tromello, McDonnell & Kehoe, Melville (Kevin P. Slattery of counsel), for respondent.
OPINION OF THE COURT
Dillon, J.
In a case involving a plaintiff who was seriously injured while engaging in a recreational activity on the property of another, we consider on this appeal the nature of proof that a landowner must tender, on a motion for summary judgment, when seeking immunity from liability pursuant to
I. Facts
On June 14, 2003, at approximately 7:15 p.m., the plaintiff, Aaron W. Morales, was rendered paraplegic from an accident while riding a four-wheel Yamaha Banshee all-terrain vehicle (hereinafter ATV) in a sand and gravel pit located in Miller Place. The sand and gravel pit was owned and commercially operated by the defendant Coram Materials Corp. (hereinafter Coram Materials). Coram Materials had contracted with the defendant Pro-Tek Security System, Inc. (hereinafter Pro-Tek), for Pro-Tek to provide security at the site.
On the date of the accident, Morales and three of his friends rode their ATVs for a few hours upon a dirt trail and through woods. They eventually emerged from the woods into a clearing that was approximately 100 feet above Coram Materials’ sand and gravel pit. The pit contained large hills of sand and gravel, construction equipment, and conveyor belts. Morales and his friends then traveled down an ungated dirt road that led from the elevated clearing to the bottom of the pit. A security guard at the bottom of the pit gave them permission to drive their ATVs within the pit on condition that they remain on the opposite side of a particular sand hill that the guard identified.
Morales ascended the hill without incident ahead of his friends. As he descended the opposite side, he observed that a portion of the hill was “missing.” Despite pressing the front and rear brakes as hard as he could, Morales was thrown over
Morales commenced this action against, among others, Coram Materials and Pro-Tek, alleging causes of action for the negligent supervision and security of the property and the failure to warn of hazardous conditions.
After Morales was deposed, but before any depositions of defense witnesses were conducted, Coram Materials moved for summary judgment on the ground that it was immunized from liability by application of
In a reply affidavit submitted in further support of the motion of Coram Materials for summary judgment, Frank Vigliarolo, a corporate officer of Coram Materials, averred that riders had operated ATVs on Coram Materials’ property for several years prior to Morales’ accident. Vigliarolo referenced an unsigned, unsworn memo from John T. Brown of Pro-Tek, dated January 27, 2003, written approximately five months before Morales’ accident, stating, inter alia, that ATVs were being operated upon the property without permission, that ATV operators would be asked to leave, and that “Brookhaven Code enforcement” would be contacted if ATV users failed to leave upon request.
By order dated January 3, 2006, the Supreme Court, Suffolk County, inter alia, granted that branch of the motion of Coram Materials which was for summary judgment dismissing the complaint insofar as asserted against it, finding that Coram Materials was immunized from liability pursuant to
Morales appeals from so much of the Supreme Court’s order as granted that branch of the motion of Coram Materials which was for summary judgment dismissing the complaint insofar as asserted against it. For the reasons set forth below, we reverse the order insofar as appealed from.
II. The Requirements of General Obligations Law § 9-103
The language of
The second principal component of the statute speaks to the issue of duty, namely, that the landowner or lessee owes no duty to keep the premises safe for listed recreational users or to warn of hazardous conditions (see
Coram Materials, as the party seeking summary judgment, bore the burden of establishing its prima facie entitlement to judgment as a matter of law on the immunizing effect of the recreational use statute (see Giuffrida v Citibank Corp., 100 NY2d 72, 81 [2003]; Friends of Animals v Associated Fur Mfrs., 46 NY2d 1065, 1067 [1979]; Chiarini v County of Ulster, 9 AD3d 769 [2004]). To meet its burden, Coram Materials was required to establish the two expressed components of
When a movant demonstrates its prima facie entitlement to summary judgment, the burden shifts to the party opposing the motion to provide evidence, in proper admissible form, sufficient to raise a triable issue of fact (see Alvarez v Prospect Hosp., 68 NY2d 320, 324 [1986]; Zuckerman v City of New York, 49 NY2d 557, 562 [1980]). Generally, a question of fact is raised under the recreational use statute if there is evidence that the defendant does not own, lease, or occupy the land where the accident occurred, or that the plaintiff was not engaged in a listed recreational activity, or that the property was not suitable for the recreational use. Additionally, an issue of fact can be raised by a party opposing summary judgment if evidence is tendered that a defined exception to the recreational use statute applies (see Farnham v Kittinger, 83 NY2d 520, 528-529 [1994]; Sega v State of New York, 60 NY2d 183, 192 [1983]; Blair v Newstead Snowseekers, 2 AD3d 1286, 1288 [2003]; Scuderi v Niagara Mohawk Power Corp., 243 AD2d 1049 [1997]). The three statutory exceptions are available when a property owner willfully or maliciously fails to guard or warn against a dangerous condition (see
III. Suitability Must Be Proven for Summary Judgment
In regard to Coram Materials’ initial burden of establishing its prima facie entitlement to summary judgment, the parties do not dispute that the plaintiff was engaged at the time of his accident in a recreational activity within the scope of the statute. The fact that the plaintiff allegedly received permission from a security guard to ride his ATV within the sand and gravel pit does not negate the statutory immunity (see
Indeed, while the statute appears to contain only two expressed components dealing with recreational use and duty, case law has added suitability as a third component which must be addressed in a motion for summary judgment to enable a determination of whether the immunity available under
It has been held that land which is commercially owned and actively utilized may be suitable for recreational use under
Similarly, in Albright v Metz (88 NY2d 656 [1996]), an infant plaintiff rode a motorized dirt bike on property which was partially used by the defendant owner as a landfill. The infant plaintiff drove up a path to the top of a berm and then plunged 35 feet into the bed of the landfill. He argued that the landfill area of the property was not suited for dirt bikes and that
A similar result was reached by this Court in Rzeczkowski v Kowalczik (237 AD2d 342 [1997]), where the plaintiff was injured when his snowmobile plunged into a gravel pit as he operated it on the defendant’s 76-acre dairy farm. This Court held, consistent with Albright and Hoffman, that the defendant’s open property was suitable for snowmobiling, for which it had been used on previous occasions, notwithstanding that the accident occurred within the gravel pit itself.
However, a different result involving “hybrid” property was reached by the Supreme Court, Oswego County, in Pulis v T.H. Kinsella, Inc. (156 Misc 2d 499 [1993]), which was affirmed by the Appellate Division, Fourth Department, “for reasons stated in decision at Supreme Court” (204 AD2d 976 [1994]), and which is relied upon by the plaintiff here. In Pulis, the plaintiff operated an ATV in a gravel pit owned by the defendant and, upon leaving the area, was injured when the ATV ran into a cable that stretched across the entrance/exit roadway. Most of the property owned by the defendant was undeveloped and suitable for ATV use, but the plaintiff never operated his ATV in those areas. The Supreme Court differentiated between the
Pulis was decided by the Supreme Court in 1993 and by the Appellate Division, Fourth Department, in 1994. Albright was decided by the Court of Appeals in 1996. Arguably then, the focus of Pulis on the use of a particular area of property where an accident occurred, for determining suitability under
The outcome of this appeal necessarily depends upon whether Coram Materials tendered prima facie evidence demonstrating that its property is generally suitable for the recreational operation of ATVs (see Albright v Metz, 88 NY2d at 663). The Court of Appeals has held that “[w]hether a parcel of land is suitable and the immunity available is a question of statutory interpretation, and is, therefore, a question of law for the Court” (Bragg v Genesee County Agric. Socy., 84 NY2d at 552; see also Albright v Metz, 88 NY2d at 662; Hulett v Niagara Mohawk Power Corp., 1 AD3d 999, 1001 [2003]). In determining suitability, courts must examine whether a defendant’s land is the “type of property 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, 88 NY2d at 662; see also Iannotti v Consolidated Rail Corp., 74 NY2d at 45; Hulett v Niagara Mohawk Power Corp., 1 AD3d at 1001). Among the primary factors considered in determining suitability is whether the property has been used for the same recreational purposes in the past (see Albright v Metz, 88 NY2d at 662; Bragg v Genesee County Agric. Socy., 84 NY2d at 547; Iannotti v Consolidated Rail Corp., 74 NY2d at 46-47; Rivera v Glen Oaks Vil. Owners, Inc., 41 AD3d at 819; Blair v Newstead Snowseekers, 2 AD3d at 1288; Moscato v Frontier Distrib., 254 AD2d 802, 803 [1998]; Obenauer v Broome County Beaver Lake Cottagers Assn., 170 AD2d 739, 740 [1991]).
Summary judgment is not warranted in favor of Coram Materials at this juncture, as Coram Materials failed to present evidentiary facts in its initial moving papers as to the general nature and description of its property. Beyond the conclusory assertions of Coram Materials’ counsel, it failed to provide an adequate basis on which the issue of “suitability” can be determined. Without such prima facie evidence in the initial moving papers, Coram Materials failed to establish that all of the elements of
The affidavit of Frank Vigliarolo, submitted by Coram Materials to show that the sand and gravel pit had historically been used by riders of ATVs, and highly relevant to the issue of suitability (e.g. Albright v Metz, 88 NY2d at 664-665), was submitted for the first time in Coram Materials’ reply papers, and therefore cannot be considered in determining whether or not Coram Materials demonstrated its prima facie entitlement to judgment as a matter of law (see GJF Constr. Corp. v Cosmopolitan Decorating Co., Inc., 35 AD3d 535 [2006]; Adler v Suffolk County Water Auth., 306 AD2d 229 [2003]; Constantine v Premier Cab Corp., 295 AD2d 303, 304 [2002]). Likewise, the unsworn and unsigned Brown memo dated January 27, 2003, relied upon by Vigliarolo in his reply affidavit to establish ATV use on the property prior to Morales’ accident, is not competent evidence for establishing entitlement to summary judgment (see Peschanker v Loporto, 252 AD2d 485, 486 [1998]; Moore v Tappen, 242 AD2d 526, 527 [1997]).
Thus, the Supreme Court erred in determining that Coram Materials’ sand and gravel pit was suitable for ATV riding, because the finding of suitability was based, in large measure, upon its consideration of the Vigliarolo reply affidavit and the unsigned, unsworn Brown memo. The Supreme Court was provided with no other facts or evidence on which to conclude that Coram Materials’ property was suitable for the use of ATVs.
Absent Coram Materials’ reply evidence, its initial moving papers on the issue of suitability were limited to the affirmation of Coram Materials’ counsel that the “land on which the plaintiff and his friends were riding was suitable for the activity of riding all terrain vehicles.” Affirmations of attorneys who have no personal knowledge of germane facts have no intrinsic evidentiary value (see Chiarini v County of Ulster, 9 AD3d at 770). Counsel’s argument on suitability is purely conclusory, as it is not based upon factual evidence in the record, and because factual evidence on the issue of suitability did not arguably exist until the submission of Coram Materials’ later reply papers. Coram Materials’ counsel, rather than relying upon facts in evidence to conclude the land was suitable for ATV use, instead relied upon a purely legal argument that, under Albright, properties with gravel pits are by definition suitable for ATV activities. However, Albright does not stand for that proposition.
In Albright, as previously noted, an infant plaintiff operated a dirt bike on a path that had been used for such purposes for many years, and the property was found by the Court of Appeals to be suitable for ATVs based upon its general characteristics. The fact that the infant plaintiff in Albright landed in a landfill was not of dispositive importance. Here, Coram Materials’ initial moving papers failed to describe the general characteristics of its entire property insofar as the issue of suit-
The parties’ remaining contentions either are without merit or have been rendered academic by our determination.
In light of the foregoing, the order is reversed insofar as appealed from, on the law, and that branch of the motion of Coram Materials which was for summary judgment dismissing the complaint insofar as asserted against it is denied, without prejudice to renewal upon the completion of discovery.
Ritter, J.P., Santucci and Miller, JJ., concur.
Ordered that the order is reversed insofar as appealed from, on the law, with costs, and that branch of the motion of the defendant Coram Materials Corp. which was for summary judgment dismissing the complaint insofar as asserted against it is denied, without prejudice to renewal upon the completion of discovery.