POWDERLY v. COLGATE UNIVERSITY (1998)

In an action to recover damages for personal injuries, the plaintiff appeals from an order of the Supreme Court, Nassau County (Segal, J.), dated January 15, 1997, which granted the defendant's motion for summary judgment dismissing the complaint.

ORDERED that the order is affirmed, with costs.

The plaintiff, while a student at the defendant university, allegedly sustained injuries when he struck a stanchion while sledding down a hill on school property.   The stanchion was part of a ski lift that was no longer in operation.   The hill at issue was used by both students and nonstudents, inter alia, for sledding.   The plaintiff thereafter commenced this action against the defendant to recover damages for negligence.   In the order appealed from, the court granted the defendant's motion for summary judgment dismissing the complaint pursuant to General Obligations Law § 9-103.   We now affirm.

 General Obligations Law § 9-103 provides conditional immunity from suits based in ordinary negligence to certain owners, lessees, and occupants of property from persons using the property for various listed recreational activities (see, Albright v. Metz, 88 N.Y.2d 656, 649 N.Y.S.2d 359, 672 N.E.2d 584;  Bragg v. Genesee County Agric. Socy., 84 N.Y.2d 544, 620 N.Y.S.2d 322, 644 N.E.2d 1013;  Iannotti v. Consolidated Rail Corp., 74 N.Y.2d 39, 544 N.Y.S.2d 308, 542 N.E.2d 621).   In order for the statute to apply, the injured party must have been engaged in a listed recreational activity and the property upon which the activity occurred must have been suitable for that activity (see, Bragg v. Genesee Agric. Socy., supra;  Iannotti v. Consolidated Rail Corp., supra).   Sledding is one of the listed recreational activities (see, General Obligations Law § 9-103[1][a] ).   Further, the facts as set forth in the record make clear that the property was suitable for sledding (see generally, Albright v. Metz, supra;  Bragg v. Genesee County Agric. Socy., supra).   The plaintiff failed to raise a triable issue of fact either that his payment of a student activity fee and/or tuition constituted “consideration” for his use of the hill within the meaning of General Obligations Law § 9-103(2)(b) (see, Heminway v. State Univ. of New York, 244 A.D.2d 979, 665 N.Y.S.2d 493;  Weller v. Colleges of the Senecas, 217 A.D.2d 280, 635 N.Y.S.2d 990) or that the defendant was guilty of “willful or malicious” conduct within the meaning of General Obligations Law § 9-103(2)(a) (see generally, Farnham v. Kittinger, 83 N.Y.2d 520, 611 N.Y.S.2d 790, 634 N.E.2d 162;  Iannotti v. Consolidated Rail Corp., supra;  Sega v. State of New York, 60 N.Y.2d 183, 469 N.Y.S.2d 51, 456 N.E.2d 1174;  Hillman v. Penn Cent. Corp., 204 A.D.2d 902, 612 N.Y.S.2d 489).   Accordingly, the court properly granted the defendant's motion for summary judgment.

MEMORANDUM BY THE COURT.