In this personal injury case, defendant moves for summary judgment. Plaintiffs oppose the motion.

On February 25, 2007 at approximately 9:00 p.m., plaintiff Sydney C. Mills fell on the nature trail on the property of the Saugerties Lighthouse which is operated by the Saugerties Lighthouse Conservancy. Plaintiff commenced suit against defendant for negligent maintenance of the nature trail and his wife has asserted a loss of consortium claim.

Defendant now moves for summary judgment, arguing that defendant is immune from liability pursuant to General Obligations Law § 9-103. Defendant argues that even if the Court finds that defendant is not entitled to such immunity, defendant is still entitled to summary judgment because the condition of the trail was open and obvious, a warning was posted at the beginning of the trail and that there was no need to warn because plaintiff was familiar with the trail, and that plaintiff assumed the risk of walking on the nature trail in winter conditions. Defendant also notes that plaintiff did not identify exactly what caused him to fall.

Plaintiffs argue that General Obligations Law § 9-103 is not applicable because plaintiff was working in his capacity as a police officer at the time and was not "hiking" the nature trail for recreation as plaintiffs argue is contemplated by the statute. Plaintiffs also argue that defendant created the condition in question by having a representative of defendant pack down the snow on the trail with snowshoes after a snowstorm on February 14, 2007. Plaintiffs also argue that defendant had constructive notice of the condition.

The Court first considers General Obligations Law § 9-103 and finds that it precludes liability in this case. General Obligations Law § 9—103 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... hiking... or to give warning of any hazardous condition or use of or structure or activity on such premises to persons entering for such purposes."

Plaintiff explains that he walked the nature trail on the evening in question while responding to a call regarding a boater in distress near a lighthouse. Plaintiff therefore walked the lighthouse trail to reach the lighthouse and look for a boater in distress in the vicinity, which he did not see. Upon returning back from the lighthouse, plaintiff alleges that he slipped and fell and fractured his elbow. While the Court notes that plaintiff was not hiking the trail for recreational purposes as a member of the public may do, he was using the same trail that is held open to the public, and in the same manner as a member of the public. It is well established that police officers are able to assert the same negligence claims that would be available to the general public, as long as the alleged negligence is not related to the reason that their police services were needed (General Obligations Law § 11-106). The Court considers that a member of the general public [*2]would not be able to assert a claim in the nature of plaintiff's claim against defendant based upon General Obligations Law § 9-103. The Court therefore does not find that a different rule should apply to plaintiff just because he was on duty as a police officer. The Court finds that based upon the facts and circumstances of this case and the applicable statutory law, plaintiff either meets the definition of someone hiking on the trail, or should be deemed to be the equivalent of a member of the public who was hiking. Based upon the foregoing, the Court finds that defendant established prima facie entitlement to judgment as a matter of law and plaintiffs failed to raise a triable issue of fact in opposition. Therefore, the Court grants defendant's motion for summary judgment. The Court does not reach defendant's remaining arguments.

Accordingly, it is

ORDERED, that defendant's motion for summary judgment is granted; and it is further

ORDERED, plaintiffs' complaint is dismissed.

This constitutes the Decision and Order of the Court. This Decision and Order is returned to the attorneys for the defendant. All other papers are delivered to the Supreme Court Clerk for transmission to the County Clerk. The signing of this Decision and Order shall not constitute entry or filing under CPLR 2220. Counsel is not relieved from the applicable provisions of this rule with regard to filing, entry and Notice of Entry.

Dated:January, 2011

Troy, New York

________________________________________

Henry F. Zwack

Acting Supreme Court Justice

Papers Considered:

Notice of Motion for Summary Judgment dated September 28, 2010; Affidavit of Patrick Landewe sworn to September 20, 2010; Affidavit of Kiley D. Scott sworn to September 21, 2010; Affirmation of Joseph D. Caldwell, Esq. dated September 28, 2010; together with Exhibits; [*3]

Affirmation in Opposition of John G. Rusk, Esq. dated November 5, 2010; together with Exhibits "A" through "B"; Affidavit of Sydney C. Mills sworn to November 5, 2010; together with Exhibits "A" through "B"; Plaintiffs' Memorandum of Law in Opposition to Defendant's Motion for Summary Judgment dated November 5, 2010;

Reply Affirmation of Joseph D. Caldwell, Esq. dated November 8, 2010.