February 2004

IN AN ACTION WITHIN WHICH WE REPRESENTED THE VILLAGE OF AKRON, THE APPELLATE DIVISION, FOURTH DEPARTMENT HELD THAT GENERAL OBLIGATIONS LAW '9-103 EXTENDS IMMUNITY TO THE MUNICIPAL MAINTENANCE OF SNOWMOBILE TRAILS.

In Blair, et al v. The Village of Akron, et al, 2003 WL 23097049, decided December 31, 2003, our office represented the Village of Akron. The plaintiffs in Blair initiated action against the Village of Akron as a result of injuries which were sustained in a snowmobile accident. On January 10, 1997, three individuals, while riding along a bike path located in the Village of Akron, collided with a guardrail adjacent to a bridge crossing. As a result, two of the snowmobilers died and one sustained serious injuries.

The Village of Akron, represented by Arthur A. Herdzik, of our office, moved for summary judgment on the applicability of General Obligations Law '9-103. The statute creates immunity for a landowner shielding him from liability for injuries occurring from the recreational use of undeveloped land. The statute was enacted to encourage property owners to permit persons to come on their property to engage in specified recreational activities without fear of liability for injuries suffered by the recreationists.

The plaintiffs opposed the motion arguing that the statute does not provide protection to municipalities which maintain and supervise parks and recreational facilities. Additionally, plaintiffs argued that the statute did not apply because the bike/jogging path located in the Village was not physically conducive to the activity of snowmobiling. The lower court denied the Village of Akron=s motion for summary judgment on the basis that the statute does not provide immunity to the Village since the path which was open to the public could be deemed a public park.

First, the Fourth Department stated that the path was physically conducive for snowmobiling since the path had been used for years as a snowmobile trail. Second, the Fourth Department held that the plaintiff failed to raise a material issue of fact that the Village had supervised, maintained or controlled the path during the wintertime or that the bike/path located in the Village was a supervised park.

A RECENT COURT OF APPEALS DECISION NARROWS THE APPLICABILITY OF NEW YORK STATE LABOR LAW '240(1).

In Blake v. Neighborhood Housing Services of New York City, Inc., ____ N.Y.2d ____, 2003 WL 22998497, decided December 23, 2003, the Court of Appeals commented on two issues involving Labor Law '240(1). First, the Court addressed whether the plaintiff could recover under '240(1) when the underlying evidence established that he was the sole proximate cause of his injuries. Additionally, the Court analyzed whether the statute applied to a financial institution which provided funding for the homeowner=s repairs.

In Blake, the plaintiff brought action under '240(1) for injuries he sustained when a ladder he was using retracted, causing injury to his ankle. Among the defendants was Neighborhood Housing Services. Plaintiff=s theory was that as the underlying financial institution, it had control over the project. The statute imposes liability on an owner, contractor or agent who had “authority to direct, supervise and control,” the work.

On the first issue the Court affirmed dismissal of the plaintiff=s claim noting that the jury concluded that the plaintiff=s injuries were the result solely of his own negligence in failing to properly use the ladder. Furthermore, the Court held that the level of involvement and control held by Neighborhood Housing Services was minimal and did not rise to the statutory criteria necessary to impose liability.

Jennifer A. Hemming