        SUPREME COURT OF THE STATE OF NEW YORK
           Appellate Division, Fourth Judicial Department

887
CA 11-00172
PRESENT: SCUDDER, P.J., SMITH, CARNI, LINDLEY, AND MARTOCHE, JJ.


MARK V. SABIA, AS ADMINISTRATOR OF THE
ESTATE OF MARIO V. SABIA, DECEASED,
PLAINTIFF-RESPONDENT,

                    V                             MEMORANDUM AND ORDER

NIAGARA MOHAWK POWER CORPORATION, DOING
BUSINESS AS NATIONAL GRID, DEFENDANT,
AND NORTHERN ERIE SNO-SEEKERS, INC.,
DEFENDANT-APPELLANT.


HANCOCK & ESTABROOK, LLP, SYRACUSE (JANET D. CALLAHAN OF COUNSEL), FOR
DEFENDANT-APPELLANT.

LAW OFFICES OF EUGENE C. TENNEY, BUFFALO (EDWARD J. SCHWENDLER, III,
OF COUNSEL), FOR PLAINTIFF-RESPONDENT.


     Appeal from an order of the Supreme Court, Erie County (John F.
O’Donnell, J.), entered December 8, 2010. The order, inter alia,
denied the motion of defendant Northern Erie Sno-Seekers, Inc. for
summary judgment dismissing the complaint and granted the cross motion
of plaintiff to dismiss the General Obligations Law § 9-103
affirmative defense of Northern Erie Sno-Seekers, Inc.

     It is hereby ORDERED that the order so appealed from is
unanimously modified on the law by denying that part of the cross
motion for summary judgment dismissing the affirmative defense of
defendant Northern Erie Sno-Seekers, Inc. pursuant to General
Obligations Law § 9-103 and granting the motion of defendant Northern
Erie Sno-Seekers, Inc. for summary judgment dismissing the complaint
against it and as modified the order is affirmed without costs.

     Memorandum: Plaintiff’s decedent was killed while operating a
snowmobile on a trail maintained by defendant Northern Erie Sno-
Seekers, Inc. (Sno-Seekers) on property owned by defendant Niagara
Mohawk Power Corporation, doing business as National Grid (NiMo).
After leaving a restaurant where he had consumed several alcoholic
beverages, decedent, followed by a friend on another snowmobile, drove
directly into a metal gate near a portion of the trail he had passed
earlier that evening. By his friend’s estimate, decedent was
traveling at a speed of approximately 45 miles per hour when he hit
the gate. Decedent was rendered unconscious immediately and died
within one hour after the accident. Plaintiff commenced this action
seeking to recover damages for decedent’s wrongful death and conscious
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                                                         CA 11-00172

pain and suffering, contending that the “accident was caused by the
willful or malicious failure to guard or to warn against a dangerous
condition, use, structure or activity of the [d]efendants.” Following
discovery, both defendants moved for summary judgment dismissing the
complaint against them, respectively, based upon General Obligations
Law § 9-103, which they each asserted as an affirmative defense. That
statute 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 . . . motorized vehicle operation for recreational
purposes[][or] snowmobile operation . . . 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 the owner, lessee or occupant of the premises is guilty of a
“willful or malicious failure to guard, or to warn against, a
dangerous condition, use, structure or activity” (§ 9-103 [2] [a]), or
receives consideration for the use of the premises to pursue, inter
alia, the above enumerated activities (§ 9-103 [2] [b]). Plaintiff,
in turn, cross-moved to strike defendants’ affirmative defenses under
section 9-103.

     Supreme Court granted NiMo’s motion, denied Sno-Seekers’ motion,
and granted that part of plaintiff’s cross motion with respect to Sno-
Seekers. The court reasoned that Sno-Seekers’ affirmative action in
directing riders in the direction of the metal gate without adequate
warnings rendered General Obligations Law § 9-103 inapplicable. The
court further determined that Sno-Seekers had failed to establish that
the $25 membership dues charged to members, including decedent, did
not constitute “consideration” for the use of the trail within the
meaning of section 9-103 (2) (b). We conclude that the court erred in
denying Sno-Seekers’ motion and in granting that part of plaintiff’s
cross motion with respect to Sno-Sneekers. We therefore modify the
order accordingly, thus dismissing the complaint in its entirety.

     General Obligations Law § 9-103 “grants a special immunity to
owners, lessees or occupants from the usual duty to keep places safe”
when those using the property are engaged in specified recreational
activities (Farnham v Kittinger, 83 NY2d 520, 525). Here, it is
undisputed that decedent was engaged in a covered activity, i.e.,
snowmobiling, and that the property had been used extensively for
snowmobiling for years and was suitable for that purpose. The court
erred in determining that the statute was inapplicable because Sno-
Seekers was guilty of “affirmative” acts of negligence, thereby
rendering the statute inapplicable pursuant to section 9-103 (2) (a).
Indeed, we held in Sauberan v Ohl (239 AD2d 891) that General
Obligations Law § 9-103 does not immunize a landowner or occupant from
liability for affirmative acts of negligence unrelated to the
condition of the land itself. Thus, in Sauberan, we held that the
statute did not shield the landowner/occupant from liability from a
hunting accident that occurred on his property, where liability was
not predicated upon his “status as owner or occupant of the land” but,
instead, was predicated “upon his allegedly improper conduct in
telling [the] defendant [in question] . . . to shoot at a target that
[the owner/occupant] could not see” (id.). Similarly, in Del Costello
v Delaware & Hudson Ry. Co. (274 AD2d 19, 21), the Third Department
                                 -3-                           887
                                                         CA 11-00172

held the statute was inapplicable in a case where the injured
plaintiff was struck by a train while operating a snowmobile on
property owned by the defendant. The Del Costello Court reasoned that
“the statute does not immunize [the defendant] landowner [or one of
its employees] from its separate and distinct duty to operate a
vehicle on its recreational property with reasonable care” (id. at 23;
see Lee v Long Is. R.R., 204 AD2d 280, 282). Here, the negligence
alleged by plaintiff is related solely to the condition of the
property itself, not to any independent duty separate and distinct
therefrom, and thus the affirmative negligence doctrine is
inapplicable.

     We reject plaintiff’s contention that Sno-Seekers was guilty of
willful or malicious conduct so as to trigger the statutory exception
under General Obligations Law § 9-103 (2) (a). That exception “ ‘must
be strictly construed in order that the major policy underlying the
legislation itself is not defeated,’ with all doubts resolved in favor
of the general provision rather than the exception” (Farnham, 83 NY2d
at 529). For a party successfully to invoke the exception, there must
be “a high-threshold demonstration . . . to show willful intent by the
alleged wrongdoer” (id.), a showing that plaintiff has failed to make
in this case.

     Finally, the fact that Sno-Seekers, a not-for-profit group,
charged a nominal membership fee of $25 per year does not trigger the
“consideration” exception to the statute (General Obligations Law § 9-
103 [2] [b]). It is undisputed that the membership fee was not
charged as a prerequisite to use of the trails, which were open to the
public at large. Indeed, the friend of decedent who was riding with
him that night was not a dues-paying member of Sno-Seekers at the
time. Under the circumstances, we conclude that there was an
insufficient nexus between the nominal membership dues and the
maintenance of the trail to trigger the statutory exception (see
Heminway v State Univ. of N.Y., 244 AD2d 979, lv denied 91 NY2d 809;
see also Martins v Syracuse Univ., 214 AD2d 967).




Entered:   September 30, 2011                  Patricia L. Morgan
                                               Clerk of the Court
