William C. Matter (hereinafter referred to as "Plaintiff"), and his wife derivatively, commenced these two actions^[FN1] seeking to recover for the personal injuries he sustained while operating his all terrain vehicle (hereinafter "ATV"). Issue was joined in both actions by Grande Stone Quarry, LLC, Troy Top Soil Co., Inc., and Gregory Grande (hereinafter collectively referred to as "Defendants"). Defendants, in turn, commenced their Third-Party action against Albert F. Matter (hereinafter "Albert") and William A. Matter (hereinafter "William"). Defendants claim that Albert and William own the land where Plaintiff sustained his injuries, and seek to impose liability on them under such theory. Albert and William joined issue. All discovery is now complete and a trial date certain is set.

Albert, William^[FN2] and Grande Stone Quarry, LLC now move for summary judgment [*2]dismissing all claims against them by operation of GOL �9-103(1)(a). Plaintiff opposes the motions. Because Albert, William and Grande Stone Quarry, LLC are immune from liability pursuant to GOL �9-103(1)(a), and no issue of fact was raised, their motions are granted.

Additionally, defendant Troy Top Soil Co., Inc. (hereinafter "Troy") seeks summary judgment claiming it owed no duty to Plaintiff; and defendant Gregory Grande seeks summary judgment claiming he is shielded from individual liability by operation of the Limited Liability Company Law and Business Corporation Law. Plaintiff and Albert oppose Troy Top Soil Co., Inc.'s motion, but not the motion of Gregory Grande individually. Because Gregory Grande's motion for summary judgment of Plaintiff's claim against him individually is duly supported and unopposed, it is granted. However, because Troy Top Soil Co., Inc. failed to demonstrate its entitlement to judgment as a matter of law, its motion is denied.

SUMMARY JUDGMENT STANDARD

"Summary judgment is a drastic remedy that should not be granted where there is any doubt as to the existence of a triable issue." (Napierski v. Finn, 229 AD2d 869, 870 [3d Dept. 1996]). All evidence must be viewed in the light most favorable to the opponent of the motion. (Haider v. Zadrozny, 61 AD3d 1077 [3d Dept. 2009]).

It is well established that the proponent of a summary judgment motion bears the "threshold burden of tendering evidentiary proof in admissible form establishing entitlement to judgment as a matter of law." (Chiarini ex rel. Chiarini v. County of Ulster, 9 AD3d 769 [3d Dept. 2004], Smalls v. AJI Industries, Inc., 10 NY3d 733 [2008], Alvarez v. Prospect Hospital, 68 NY2d 320 [1986]; CPLR �3212). If the movant establishes their right to judgment as a matter of law, the burden then shifts to the opponent of the motion to establish, by admissible proof, the existence of genuine issues of fact. (Zuckerman v. City of New York, 49 NY2d 557 [1980]; Manculich v. Dependable Auto Sales and Service, Inc., 39 AD3d 1070 [3d Dept. 2007]).

GENERAL OBLIGATIONS LAW �9-103(1)(a)

"General Obligations Law § 9-103 immunizes a landowner [lessee or occupant of property] from liability when (1) the plaintiff is engaged in one of the activities identified in section 9-103 and (2) the plaintiff is recreating on land suitable for that activity." (Bryant v. Smith, 278 AD2d 576 [3d Dept. 2000] quoting Albright v Metz, 88 NY2d 656 [1996]). GOL § 9-103 specifically identifies "motorized vehicle operation for recreational purposes", which includes ATV use. (Gardner v. Owasco River Ry., Inc., 142 AD2d 61 [3d Dept. 1988], Bryant, supra, Morales v. Coram Materials Corp., 51 AD3d 86, 89 [2d Dept. 2008]). Additionally, suitability is determined by whether the property is "physically conducive to the particular activity [and]... appropriate for public use in pursuing the activity as recreation?" (Iannotti v. Consolidated Rail Corp., 74 NY2d 39, 45 [1989], Bragg v. Genesee County Agricultural Society, 84 NY2d 544 [1994]). "A substantial indicator that property is physically conducive to the particular activity' is whether recreationists have used the property for that activity in the past; such past use by participants in the sport manifests the fact that the property is physically conducive to it." (Albright, supra at 662). [*3]

On this record, Albert and Grande Stone Quarry, LLC demonstrated that GOL §9-103(1)(a)'s immunity applies, as a matter of law.

In support of their motions, Albert and Grande Stone Quarry, LLC both rely on Plaintiff's deposition testimony.^[FN3] Plaintiff testified that he lives less than one mile from the site of his injury. The property between his home and the injury site is jointly owned by Albert (Plaintiff's uncle) and William (Plaintiff's father) (hereinafter "the Matter Property"). He drove his ATV from his home to the injury site on an access road. At the injury site, the Matter Property abuts property owned by Grande Stone Quarry, LLC. The Grande Stone Quarry, LLC property is used as a commercial stone quarry. The Matter property is mostly wooded, but it too contains a quarry.

While ownership of the injury site was not definitively established, Plaintiff did testify that it occurred on a "bridge" that connected the opposite sides of a gully. It is uncontested that the "bridge" is built of stone and fills the gully, rather than spanning it. Albert's deposition testimony establishes that it was built before 1990, and had been used to drive "ten-wheeler tandem axle trucks over it." Plaintiff testified that the "bridge" connected an access road/trail leading from his home to Defendant's quarry and then onto a public road. Gregory Grande admitted, at his deposition^[FN4], that he added approximately three feet of clay and shale to the top of the bridge. Gregory Grande testified that he performed such excavation work to improve the settling pond located next to the "bridge", as per the Department of Environmental Conservation's mandate. Plaintiff was injured while driving his ATV over the "bridge", when the loose material on top of it gave way, causing him to fall to the bottom of the bridge into the dry settling pond.

Plaintiff further testified that he had previously traversed the "bridge" on "many occasions", and that he intermittently drives his ATV on the Matter property for pleasure. Albert also acknowledged seeing people use the bridge. He stated:"[t]here were four wheelers all over the place. Snowmobilers in the winter; four wheelers in the summer." William A. Matter similarly acknowledged the use of the property by "ATV drivers and snowmobilers... without permission."

From the foregoing, Albert and Grande Stone Quarry, LLC demonstrated their entitlement to judgment as a matter of law. First, it is uncontested that Plaintiff was injured while driving his ATV, an inherently recreational vehicle and identified by GOL § 9-103's "motorized vehicle operation for recreational purposes". (Gardner, supra, Bryant, supra, Morales, supra). Second, Albert and Grande Stone Quarry, LLC demonstrated that Plaintiff's [*4]injury occurred in an area suitable for ATV use. Roads/trails ran throughout the Matter property and Grande Stone Quarry, LLC's property, leading up to and away from the injury site. The "bridge" itself was clearly sufficient for ATV use, as it sustained large truck travel. Moreover, Plaintiff acknowledged using the bridge previously, and to recreational use of his ATV on the Matter property. Albert and William's testimony also established that recreationists had used the properties in the past, thereby further demonstrating that the property was suitable for ATV use. (Albright, supra).

With the burden shifted, Plaintiff failed to demonstrate the existence of an issue of fact. Although Plaintiff testified that he was not "recreating" at the time of his injury, his recreational intent is irrelevant. (Farnham v. Kittinger, 83 NY2d 520, 528 [1994]["As to [the use of]... all-terrain vehicles, the subjective intent of the [user] remains irrelevant, since those motor vehicles by their nature are designed predominantly for recreational purposes."]). Nor did Plaintiff raise an issue of fact relative to "suitability" of the property for ATV use. At his deposition Plaintiff did not deny the existence of the roads/trails on the property, the past use of the "bridge", or his recreational use of the properties in the past. Notwithstanding Gregory Grande and Anthony Grande's testimony that they had not seen ATV use at the property, Anthony Grande specifically noted the trails on the properties. He stated that the trail leading to the "bridge" was made by "trespassers... people have been going over it for years." Moreover, Plaintiff, Albert and William all testified about their observations of prior recreational use. As such, no issue of fact was raised.

Additionally, Plaintiff does not dispute that Albert, William and Grande Stone Quarry, LLC each either owned, leased or occupied the site of his injury, thereby authorizing GOL § 9-103's applicability. Accordingly, because GOL § 9-103 applies as a matter of law, and no issue of fact was raised, Albert, William and Grande Stone Quarry, LLC are immune from liability and the claims against them are dismissed.

DEFENDANT TROY TOP SOIL CO., INC.'S MOTION FOR

SUMMARY JUDGMENT

Troy moves for summary judgment of Plaintiff's claim against it, alleging that it owes Plaintiff no duty of care. While it is undisputed that Troy did not own the land where plaintiff sustained his injury (thus GOL § 9-103 does not immunize it from liability) and no landowner liability attaches; Troy failed to demonstrate that it owed no duty of care to Plaintiff. Accordingly, its motion is denied.

Generally, contractual obligations will impose no duty of care upon the contracting parties towards non-contracting third parties. (Espinal v. Melville Snow Contractors, Inc., 98 NY2d 136 [2002]). However, a contractual obligation will give rise to a duty to non-contracting third parties in "three, limited situations: (1) where the promisor, while engaged affirmatively in discharging a contractual obligation, creates an unreasonable risk of harm to others, or increases that risk; (2) where the plaintiff has suffered injury as a result of reasonable reliance upon the defendant's continuing performance of a contractual obligation; and (3) when the promisor has entirely displaced the other party's duty to safely maintain the premises". (Moran v. City of Schenectady, 47 AD3d 1001, 1002 [3d Dept. 2008], quoting Wyant v. Professional Furnishing [*5]& Equip., Inc., 31 AD3d 952, 953 [2006], see Espinal, supra). On this record, the second and third exceptions to the general rule are neither at issue nor applicable. The first exception, however, is applicable and "consider[s] whether [Troy's] performance of their contractual obligations made the ["bridge"] less safe than before the construction project began." (Wyant, supra at 954, quoting Timmins v Tishman Constr. Corp., 9 AD3d 62, 68 [3d Dept. 2004], lv dismissed 4 NY3d 739 [2004]).

Here, Troy demonstrated the necessary contractual relation. Troy relies upon the depositions of Anthony Grande^[FN5] and Gregory Grande to support their motion. Anthony Grande specifically explained the corporate relationship between Grande Stone Quarry, LLC and Troy. He testified that the settling pond excavation work was done by Troy on Grande Stone Quarry, LLC's property. Gregory Grande, although he did not specify that he was working for Troy, admitted that he and others performed the settling pond excavation work. He also acknowledged that Troy would be the entity that kept log books for the settling pond excavation work and that he is paid by Troy for the work he does at Grande Stone Quarry, LLC's property. From such testimony, Troy demonstrated that it performed the settling pond excavation work (not Gregory Grande individually) pursuant to a contract with Grande Stone Quarry, LLC.

Troy failed to demonstrate, however, that it did not "create[] an unreasonable risk of harm to others, or increase[] that risk." (Moran, supra). Gregory Grande testified that Troy used clay and shale to perform the settling pond excavation work. He estimated that Troy placed approximately three feet of clay and shale on top of the "bridge". He could not remember if any binding agent was used, nor did he state that the materials placed on top of the "bridge" were compacted. Anthony Grande, although elusive in his deposition testimony, also acknowledged the increase in height of settling pond's walls, which included the "bridge". As Plaintiff claims that his fall was caused by the loose materials on top of the bridge giving way, and Troy acknowledged placing such material there, Troy failed to demonstrate that it did not make "the ["bridge"] less safe than before the construction project began." (Wyant, supra). As such, Troy failed to demonstrate its entitlement to judgment as a matter of law, and its motion is denied.

This Decision and Order is being returned to the attorneys for the Defendants. A copy of this Decision and Order and all other original papers submitted on this motion are being delivered to the Albany County Clerk for filing. The signing of this Decision and Order shall not constitute entry or filing under CPLR §2220. Counsel is not relieved from the applicable provision of that section respecting filing, entry and notice of entry.

So Ordered.

Dated: February 3, 2010

Albany, New York________________________________

JOSEPH C. TERESI, J.S.C.

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