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Supreme Court12/16/1999
Appeal from an order of the Supreme Court (Canfield, J.), entered August 13, 1998 in Rensselaer County, which granted defendant's motion for summary judgment dismissing the complaint.
On the evening of February 6, 1995, Matthew J. Perrott (hereinafter decedent) took his family snowsledding at Frear Park, a public park in the City of Troy, Rensselaer County, which is owned by defendant and which includes an 18-hole golf course, tennis courts, ballfields and playgrounds, all of which were closed for the winter. Defendant operated an indoor ice skating rink in the park near the golf course and owned a restaurant in the park which was operated by third parties at the time in question. Located in the area of the first tee on the golf course is a hill which was used by the public for sledding during the winter months. At approximately 6:50 P.M., at the same time that decedent started to slide down the hill aboard a snow tube, three snowmobiles entered the area in which he and others were sledding. Tragically, one of the snowmobiles struck decedent, inflicting fatal injuries.
Thereafter, plaintiff, decedent's wife, individually and as administrator of decedent's estate and also on behalf of their children, commenced this wrongful death action against defendant. As amplified in the bill of particulars, plaintiff alleged, inter alia, that defendant was negligent in failing to erect signs alerting snowsledders of the danger of snowmobiles in the park or to warn persons that snowmobiling was prohibited, and in failing to erect a barrier or fence that would have prevented snowmobile operators from entering the area where sledding took place. Defendant answered and later moved for summary judgment dismissing the complaint, alleging, inter alia, that it was immune from liability pursuant to General Obligations Law §9-103. Supreme Court granted the motion and dismissed the complaint. Plaintiff now appeals.
We affirm. General Obligations Law §9-103 extends broad immunity from liability to private as well as government landowners against claims for ordinary negligence brought by members of the public who come on their property to engage in certain enumerated activities where the land is suitable for those activities (see, General Obligations Law §9-103 ; see also, McCarthy v New York State Canal Corp., 244 AD2d 57, 60, lv denied 92 NY2d 815). It does not absolve the landowner for willfully or maliciously failing to warn or protect the public from an existing danger (see, General Obligations Law §9-103 ), or if permission to engage in the enumerated activities was granted for consideration (see, General Obligations Law §9-103 ). The statute specifically provides that such an owner "owes no duty to keep the premises safe for entry or use by others * * * or to give warning of any hazardous condition or use of * * * or activity on such premises to persons entering for such [enumerated] purposes", which enumerated activities include "tobogganing" and "sledding" (General Obligations Law §9-103 ). It is undisputed that the area where the accident occurred is suitable for winter snow sledding (see, Stento v State of New York, 245 AD2d 771, 772, lv denied 92 NY2d 802; see also, Albright v Metz, 88 NY2d 656). It is also uncontroverted that decedent was engaged in sledding, an enumerated activity, at the time of the accident and that defendant did not charge a fee to the public for use of this park land for that activity.
This statutory immunity is designed "to induce property owners, who might otherwise be reluctant to do so for fear of liability, to permit persons to come on their property to pursue [the enumerated] activities" (Ferres v City of New Rochelle, 68 NY2d 446,
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