SAUBERAN v. OHL (1997)

Supreme Court, Appellate Division, Fourth Department, New York.

Frank E. SAUBERAN, Respondent, v. Melvin OHL, Appellant, et al., Defendant.

Decided: May 30, 1997

Before DENMAN, P.J., and PINE, CALLAHAN, BOEHM and FALLON, JJ.

Gibson, McAskill & Crosby by Thomas R. Smith, Buffalo, for Appellant. John R. Nuchereno, Buffalo, for Respondent.

In this hunting accident case, Supreme Court properly granted plaintiff's cross motion to dismiss the affirmative defense of defendant Melvin Ohl asserting that Ohl is immune from liability pursuant to General Obligations Law § 9-103. Ohl's alleged liability is not premised upon any condition on the land or upon Ohl's status as owner or occupant of the land. Rather, the action against Ohl is based upon his allegedly improper conduct in telling defendant David Harford to shoot at a target that Ohl could not see. The court properly determined that the conduct of Ohl removes him from the protection afforded by General Obligations Law § 9-103 (see, Lee v. Long Is. R. R., 204 A.D.2d 280, 282, 611 N.Y.S.2d 296; see also, Ferres v. City of New Rochelle, 68 N.Y.2d 446, 451-452, 510 N.Y.S.2d 57, 502 N.E.2d 972).

We have reviewed the remaining contentions raised on appeal and conclude that they are without merit.

Order unanimously affirmed without costs.

MEMORANDUM:

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