MICHAEL METZGIER PLAINTIFF RESPONDENT v. ABE MILLER DEFENDANT APPELLANT

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

MICHAEL METZGIER, PLAINTIFF–RESPONDENT, v. ABE A. MILLER, DEFENDANT–APPELLANT.

CA 11–00394

Decided: September 30, 2011

PRESENT:  FAHEY, J.P., PERADOTTO, LINDLEY, SCONIERS, AND GREEN, JJ. BRINDISI, MURAD, BRINDISI, PEARLMAN, JULIAN & PERTZ, LLP, UTICA (ANTHONY J. BRINDISI OF COUNSEL), FOR DEFENDANT–APPELLANT.

MEMORANDUM AND ORDER

It is hereby ORDERED that the order so appealed from is unanimously reversed on the law without costs, defendant's motion is granted, and the complaint is dismissed.

Memorandum:  Plaintiff commenced this action seeking damages for injuries he allegedly sustained while operating an all-terrain vehicle (ATV) on defendant's property when he struck a single strand of barbed wire fencing that defendant had strung between two trees on the property.   At the time of the accident, plaintiff and his cousin were operating ATVs on defendant's property without the knowledge or permission of defendant.   We conclude that Supreme Court erred in denying defendant's motion for summary judgment dismissing the complaint.   Defendant met his initial burden on the motion by establishing that he was entitled to the benefit of the recreational use statute, i.e., General Obligations Law § 9–103, inasmuch as he was the owner of the property where plaintiff was operating an ATV (see § 9–103[1][a];  Albright v. Metz, 88 N.Y.2d 656, 662;  Bragg v Genesee County Agric.   Socy., 84 N.Y.2d 544, 551–552;  see generally Zuckerman v. City of New York, 49 N.Y.2d 557, 562).   In opposition to defendant's motion, plaintiff failed to come forward with evidence in admissible form establishing that defendant's conduct in constructing the barbed wire fencing constituted a “willful or malicious failure to guard, or to warn against, a dangerous condition” such that the statute would not limit defendant's liability (§ 9–103[2][a];  see Farnham v. Kittinger, 83 N.Y.2d 520, 528–529;  Hinchliffe v Orange & Rockland Utils.   Co., 216 A.D.2d 528, 529, lv denied 87 N.Y.2d 801;  Wilkins v. State of New York, 165 A.D.2d 514, 518).

Patricia L. Morgan

Clerk of the Court