NICHOLAS SARACENO PLAINTIFF APPELLANT v. LAURA MAZIKOWSKI AS ADMINISTRATOR OF THE ESTATE OF ROGER MAZIKOWSKI DECEASED DEFENDANT RESPONDENT (2026)

MEMORANDUM AND ORDER

It is hereby ORDERED that the order so appealed from is unanimously affirmed without costs.

Memorandum: Plaintiff commenced this action seeking to recover damages for injuries he sustained when he fell to the ground from a tree stand used to hunt deer that was erected on property owned by his uncle, defendant's decedent. Defendant moved for summary judgment dismissing the complaint on the basis that decedent's estate is immune from liability pursuant to General Obligations Law § 9-103. Supreme Court granted the motion. Plaintiff now appeals, and we affirm.

General Obligations Law § 9-103 “grants landowners (and lessees and occupants) immunity from liability based on ordinary negligence if a person engaged in a listed recreational activity is injured while using their land” (Bragg v Genesee County Agric. Socy., 84 NY2d 544, 548 [1994]; see Davis v Hinds, 215 AD3d 1242, 1242-1243 [4th Dept 2023]). It provides, in relevant part, that “an owner, lessee or occupant of premises ․ owes no duty to keep the premises safe for entry or use by others for[, inter alia,] hunting ․ or to give warning of any hazardous condition or use of or structure or activity on such premises to persons entering for such purposes” (§ 9-103 [1] [a]), unless, inter alia, the owner, lessee or occupant of the premises engages in a “willful or malicious failure to guard, or to warn against, a dangerous condition, use, structure or activity” (§ 9-103 [2] [a]).

To establish entitlement to summary judgment based upon immunity under section 9-103, a defendant owner must establish ownership of the property, that at the time of the accident, the plaintiff was engaged in one of the activities covered by the statute, and that the property was suitable for the recreational use in question (see Bragg, 84 NY2d at 551-552; Delaney v Syracuse Univ., 224 AD3d 1390, 1391 [4th Dept 2024]). The parties do not dispute that decedent owned the property and that the property was suitable for hunting. Thus, the only issue disputed by the parties is whether plaintiff was engaged in activity encompassed by General Obligations Law § 9-103 at the time of the accident. Of particular relevance here, it is well settled that activities that are “sufficiently related” to the recreational uses covered by General Obligations Law § 9-103 are also entitled to the immunity granted under that provision (Sega v State of New York, 60 NY2d 183, 193 [1983], rearg denied 61 NY2d 670 [1983]; see generally Hulett v Niagara Mohawk Power Corp., 1 AD3d 999, 1000-1001 [4th Dept 2003]; Cramer v Henderson, 120 AD2d 925, 925 [4th Dept 1986]).

Here, we conclude that defendant met her initial burden of establishing that plaintiff was engaged in protected activity at the time of the accident—specifically, that he was engaged in hunting or activity sufficiently related to hunting when he fell from the tree stand (see generally Alvarez v Prospect Hosp., 68 NY2d 320, 324 [1986]). Applicable regulations define hunting as “pursuing, shooting, killing or capturing (other than trapping) wildlife ․ [including] ․ every attempt to take and every act of assistance to any other person in taking or attempting to take wildlife” (6 NYCRR 197.2 [d] [emphasis added]). In support of her motion, defendant submitted deposition testimony establishing that, on the day of the accident—which was the last day of deer hunting season—plaintiff came to the property to retrieve game cameras located on the property. Such cameras are used to track animals and, thereby, aid hunters in securing their quarry. Additionally, the deposition testimony establishes that, on the day in question, plaintiff brought with him a muzzle-loading rifle, which he testified that he would use for the purpose of shooting a deer, if he saw one worth shooting that day. Both of those activities—carrying a gun with the intent to potentially shoot a deer, and retrieving game cameras used to facilitate the hunting of deer—are sufficient to establish that plaintiff was engaged in hunting, or activity sufficiently related to hunting, at the time of the accident (see McCarthy v New York State Canal Corp., 244 AD2d 57, 60 [3d Dept 1998], lv denied 92 NY2d 815 [1998]; Curtiss v County of Chemung, 78 AD2d 908, 909 [3d Dept 1980]).

Although plaintiff contends that, at the time he fell, he was looking for his keys, that assertion does not contradict the other evidence submitted by defendant showing that plaintiff was on the premises for hunting or hunting-related purposes. Indeed, we conclude that plaintiff's assertion that he was not engaged in activity covered by General Obligations Law § 9-103 because he was looking for his keys when he fell is an approach to determining whether a plaintiff was engaged in covered activity that is too narrowly focused, and ignores the overall point of plaintiff's presence on the premises when he was injured (see generally Sega, 60 NY2d at 193; Hulett, 1 AD3d at 1000-1001; McCarthy, 244 AD2d at 60). Such a narrow focus in determining section 9-103’s applicability is not supported by the language of the statute or its purpose (see Bragg, 84 NY2d at 549-550; Ferres v City of New Rochelle, 68 NY2d 446, 451-452 [1986]).

Inasmuch as defendant met her burden of establishing that she is entitled to the immunity provided by General Obligations Law § 9-103, the burden shifted to plaintiff to raise a triable issue of material fact in opposition. We conclude that plaintiff did not meet his burden in that regard, and failed to raise a triable question of fact with respect to whether he was engaged in hunting or hunting-related activity at the time of the accident (see Bragg, 84 NY2d at 546-547; see generally Zuckerman v City of New York, 49 NY2d 557, 562 [1980]). Consequently, the court properly granted defendant's motion and dismissed the complaint.

Moreover, even assuming, arguendo, that there were issues of fact with respect to the applicability of General Obligations Law § 9-103, we conclude that the court properly granted the motion and dismissed the complaint based on ordinary principles of premises liability. Specifically, we conclude that defendant met her initial burden on the motion through submissions establishing that decedent did not create the allegedly dangerous condition that caused the fall—i.e., the tree stand—and he also did not have actual or constructive notice of the tree stand's allegedly dangerous condition (see generally Andrews v JCP Groceries, Inc., 208 AD3d 1607, 1608 [4th Dept 2022]; Menear v Kwik Fill, 174 AD3d 1354, 1357 [4th Dept 2019]). We further conclude that, in opposition, plaintiff did not raise a triable issue of fact with respect to whether decedent created or had sufficient notice of the dangerous condition (see generally Zuckerman, 49 NY2d at 562; Menear, 174 AD3d at 1358).

Finally, we have reviewed plaintiff's remaining contention and conclude that it does not warrant reversal or modification of the order.

Entered: July 24, 2026

Ann Dillon Flynn

Clerk of the Court