41 A.D.3d 817
N.Y. App. Div.
2007

MICHAEL RIVERA, Respondent, v GLEN OAKS VILLAGE OWNERS, INC., Appellant.

Supreme Court, Appellate Division, Second Department, New York

839 NYS2d 183

Polizzi, J.

In an action to recover damages for personаl 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 comрlaint.

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 biсycling. 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, approximatеly two feet wide and three feet deep. Unable to avoid the hole, the front wheel of the plaintiff‘s 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.

General 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 reluctаnt 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 oрening 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 goоd; 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 activitiеs 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 оf 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 оpen 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 NortheasternIndus. 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 plaintiff‘s 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 plaintiff‘s 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 еstablished, 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 exеrcise 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 plaintiff‘s friends on the day in question, аlong 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 havе 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 plaintiff‘s 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 оr absence of a dangerous condition is not the benchmark for determining suitability” (Hinchliffe v Orange & Rockland Utils. Co., 216 AD2d 528, 529 [1995], quoting McGregor 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 lаnd . . . , to rural or urban property, whether developed or undeveloped” (Bragg v Genesee County Agric. Socy., supra at 548; see Iannotti v Consolidated Rail Corp., supra at 44-45). Accordingly, the defendant is entitled to immunity pursuant to General Obligations Law § 9-103.

Alternatively, the defendant‘s motiоn for summary judgment dismissing the complaint should have been granted under the doctrine of primary assumption of risk. By engaging in a sport or recreational ‍​‌‌‌​​‌​​​​‌‌‌​‌​​‌​‌​​​​​​‌‌‌‌​‌​‌‌​‌‌​​‌‌​‌​​​‍activity, a participant consents to those commonly-appreciated risks which are inherent in and arise out of the nature of the sport generally and flow frоm such participation (see Turcotte v Fell, 68 NY2d 432, 439 [1986]; Morgan v State of New York, 90 NY2d 471, 484-486 [1997]; Maddox v City of New York, 66 NY2d 270, 277-278 [1985]; Schiavone v Brinewood Rod & Gun Club, 283 AD2d 234, 236 [2001]). A landowner owes “a duty to exercise care to make the conditions as safe as they appear to be. If thе risks of the activity are fully comprehended or perfectly obvious, plaintiff has consented to them and defendant has performed its duty” (Morgan v State of New York, supra at 484, quoting Turcotte v Fell, supra at 439). “It is not necessary to the application of assumption of risk that the injured plaintiff have foreseen the exact manner in which his or her injury occurred, so long as he or she is aware of the potential for injury of the mechanism from which the injury results” (Maddox v City of New York, supra at 278). However, while knowledge of the risk plays a role in determining the extent of the threshold duty of thе care, “inherency is the sine qua non” (Morgan v State of New York, supra at 484; see Weller v Colleges of the Senecas, 217 AD2d 280, 283 [1995]; Lamey v Foley, 188 AD2d 157, 164 [1993]).

Applying these principles to the matter at hand, the defendant established that the plaintiff was an experiencеd bicyclist as evidenced by the fact that he rode his bicycle two or three times a week, carried a “patch kit” in case he suffered a flat tire, and sometimes rode the bicycle far from his home. “[T]he risk of striking a hole and falling is an inherent risk in riding a bicycle on most outdoor surfaces” (Goldberg v Town of Hempstead, 289 AD2d 198 [2001]), and the plaintiff assumed that riskwhen he rode his bicycle on a dirt trail (see Sedita v City of New York, 8 AD3d 256, 257 [2004]; Dobert v State of New York, 8 AD3d 873, 874 [2004]; Furgang v Club Med, 299 AD2d 162 [2002]; Schiavone v Brinewood Rod & Gun Club, supra at 236-237; Calise v City of New York, 239 AD2d 378, 379 [1997]). As such, the defendant satisfied its primа facie burden of establishing its entitlement to judgment as a matter of law under the doctrine of primary assumption of risk. In opposition, the plaintiff failed to raise a triable issue of fact as to whether the defendant concealed the hole or unreasonably increased the risk of falling into it (see Morgan v State of New York, supra at 485; Sanchez v City of New York, 25 AD3d 776, 777 [2006]; Braun v Davos Resort, 241 AD2d 533, 534 [1997]). The affidavit from one of the plaintiff‘s friends presented only a feigned issue of fact designed to avoid the consequences of the plaintiff‘s ‍​‌‌‌​​‌​​​​‌‌‌​‌​​‌​‌​​​​​​‌‌‌‌​‌​‌‌​‌‌​​‌‌​‌​​​‍deposition testimony in which he stated that there was no mound of dirt in front of the hole or debris concealing it (see Stancil v Supermarkets Gen., 16 AD3d 402, 403 [2005]; Rodriguez v New York City Hous. Auth., 304 AD2d 468, 469 [2003]). Accordingly, the defendant‘s motion for summary judgment dismissing the complaint should have been granted.

Rivera, J.P., Skelos, Lifson and Balkin, JJ., concur.