MYERS v. STATE 101708 (2004)

Claimant, as administrator of the estate of Karl L. Myers (decedent), commenced this action seeking damages for wrongful death and conscious pain and suffering resulting from decedent's fatal fall at Chimney Bluffs State Park.   The Court of Claims erred in denying defendant's motion for summary judgment dismissing the claim and granting claimant's cross motion for partial summary judgment dismissing the eighth affirmative defense, which alleges that defendant is immune from liability pursuant to General Obligations Law § 9-103.   It is undisputed that the area where the accident occurred is suitable for hiking (an activity enumerated in the statute), decedent was engaged in that activity at the time of the accident and defendant did not charge a fee for the use of the park (see Perrott v. City of Troy, 261 A.D.2d 29, 31, 699 N.Y.S.2d 783).   The determinative inquiry with respect to the applicability of the statutory grant of immunity here concerns the role of defendant in relation to the public's use of the park (see Blair v. Newstead Snowseekers, 2 A.D.3d 1286, 1288, 769 N.Y.S.2d 807, lv. denied 2 N.Y.3d 704, 780 N.Y.S.2d 310, 812 N.E.2d 1260;  Stento v. State of New York, 245 A.D.2d 771, 772, 665 N.Y.S.2d 471, lv. denied 92 N.Y.2d 802, 677 N.Y.S.2d 72, 699 N.E.2d 432;  Wilkins v. State of New York, 165 A.D.2d 514, 517, 568 N.Y.S.2d 236).   Defendant submitted uncontested proof that the park was undeveloped and its role at the park in relation to the public's use was limited to providing a parking lot and performing occasional maintenance such as clearing garbage and debris (see Sega v. State of New York, 60 N.Y.2d 183, 187-188, 469 N.Y.S.2d 51, 456 N.E.2d 1174).   Defendant also established that the park had no employees or recreational facilities (cf. Ferres v. City of New Rochelle, 68 N.Y.2d 446, 449, 510 N.Y.S.2d 57, 502 N.E.2d 972;  Keppler v. Town of Schroon, 267 A.D.2d 745, 747, 699 N.Y.S.2d 792), defendant did not supervise hiking or maintain paths at the park for that purpose (see Blair, 2 A.D.3d at 1288, 769 N.Y.S.2d 807;  Stento, 245 A.D.2d at 772, 665 N.Y.S.2d 471), and hiking was permitted but not encouraged there (see Perrott, 261 A.D.2d at 31, 699 N.Y.S.2d 783;  Clark v. State of New York, 178 A.D.2d 908, 909, 577 N.Y.S.2d 946).   That proof was sufficient to establish defendant's entitlement to judgment, and claimant failed to raise a material issue of fact whether defendant is entitled to the immunity from liability afforded by section 9-103 (see Blair, 2 A.D.3d at 1289, 769 N.Y.S.2d 807).

It is hereby ORDERED that the order so appealed from be and the same hereby is unanimously reversed on the law without costs, the motion is granted, the claim is dismissed and the cross motion is denied.

MEMORANDUM: