The following papers were considered in connection with defendant's motion for an order pursuant to CPLR §3212, granting summary judgment to defendant, dismissing plaintiff's complaint:

Plaintiff commenced this action to recover damages for personal injuries on or about August 31, 2017 by the filing of a summons and complaint. Plaintiff alleges that on September 9, 2015, he was struck in the face by a piece of metal fencing while lawfully at defendant Camp-Fire Club of America (the Club), located at 230 Campfire Road in Chappaqua, New York. Plaintiff claims permanent injury to his left eye. According to plaintiff, the Club, inter alia, negligently created a dangerous condition of which it had notice, and failed to warn him of the dangerous condition. The Club answered the complaint on November 16, 2017. Plaintiff filed a note of issue on October 9, 2019 after the completion of party depositions, summarized below.

Plaintiff joined the Club in 1983, and described it as "a sportsmen's club for white males only who were of Christian descent" (12-13). Plaintiff became more involved in the Club beginning in 2013 and participated in Wood Chopper's Day, which occurred twice a year (16, 19-20). He described it as "a day where all the members volunteer," and stated that on Wood Chopper's Days from 2013 through 2016, Dan Trotta, the Club employee who "ran all the maintenance stuff," gave assignments to the volunteers such as chopping wood and fixing fencing (18-20).

Sometime after the first Wood Chopper's Day in 2013, plaintiff began "working to create a perimeter path at the club" (24). He decided to create the path after speaking to Club members who were complaining about poaching and trespassing, and thought it would be "nice" to have a perimeter path to allow for exercise and to improve security (25). Before starting work on the path, plaintiff "[t]alked with Dan Trotta about it. He said that'd be great. Pretty much supportive of it" (26). When plaintiff made the path suggestion, he knew there was a fence around the perimeter of the property (27). He thought that creating the path would entail weed whacking, but "[n]ot going right on the edge, there are places with rocks that you can't see, so you move around it" (27). Plaintiff intended to create "[a] path wide enough for a [sic] ATV, a one-man ATV to go down, so that Dan [Trotta] could inspect the perimeter" (65).

According to plaintiff, at an unspecified Wood Chopper's Day, Trotta assigned him to work on the perimeter path with a group of other Club members (28). Trotta issued the assignment verbally and told plaintiff "[I'm] going to have a bunch of guys, have them meet you, they're already starting there at the old rifle range and going up along the perimeter. I said great, let's go" (29). Plaintiff could not remember what type of work he did on the path that day (31-32). At a subsequent Wood Chopper's Day, plaintiff was assigned to replace "some chain-link with other chain-link that Dan [Trotta] and the other guys had put out for us to use to repair" (38-39). When asked if the fencing assignment was "part of the perimeter path project," plaintiff said, "I don't know" (40). He later stated that he could not recall whether anyone helped him to clear the perimeter path (50), and further stated that he did not recall Trotta ever asking him how the path project was going (67).

Plaintiff worked on the path on multiple Wednesdays per month after the 2013 Wood Chopper's Day (34, 36-37). He spent his time "[c]learing logs that had fallen. Clearing weeds that had grown up over the fences. Clearing brush that had grown up. Removing old fencing that was laying around when [he] could find it, piling that in a pile of metal, you know, on the [*2]side. And slowly moving along" (43). Plaintiff stated, "I'd meet friends afterwards and shoot. So I'd work from 8 in the morning till 10, two hours, weed whacking, get some exercise, and then meet them to then go and have lunch" (37). The Club never paid plaintiff for his work on the path, which was performed on a "[s]trictly volunteer" basis (50). Plaintiff stated that no one from the Club ever observed him doing his path work (38).

When asked to elaborate on his Wednesday routine, plaintiff testified, "So I'd get there about 7:30, 8 o'clock, 7:15, 8:15, somewhere in there. Usually would see Dan [Trotta] taking his children to school—because his house is right next to the front gate—wave to him. Go on into a spot in the preserve where I was working. And then I would get out of my truck and put on my steel-toed boots—my heavy brush pants on top of the blue jeans, then the steel-toed boots, put on a heavy brush coat, put on a hard hat, which you have a picture of. Gloves. And usually have a machete, chain saw, and a weed whacker, I'd take those into the woods and start clearing" (44-45). Plaintiff could not recall whether he had conversations with Trotta in the mornings about what plaintiff was there to do (52). The weed whacker and other equipment belonged to plaintiff (77, 79, 87).

Trotta provided plaintiff with signs that said "Danger Shooting Range, something to that effect," as well as marking tape, which was used so that "people could follow the path" (41-42). When asked if Trotta ever gave plaintiff tools or equipment for clearing the path other than the signs and marking tape, he said that one time Trotta gave him a "[l]ogging tool" so that plaintiff could move a log, but the tool was ineffective and plaintiff returned it to Trotta (45-46).

On September 9, 2015, plaintiff was "[p]robably two-thirds, three-quarters" done with the entire path project (42, 44). That date was a Wednesday and was not a Wood Chopper's Day (74). Plaintiff arrived at the Club at approximately 8 a.m. and did not see Trotta that morning (74-75). He walked in his work boots between a quarter mile and a half mile from his vehicle to his intended work area (76). It was not raining that day (98). Plaintiff stated, "I had my hard hat with the [visor] down, I had my glasses, I had my chain saw, I had my machete at my side, couple of bottles of water, and weed whacker, brush whacker" (77). Plaintiff could not recall whether he was wearing safety goggles (77).

Plaintiff stated that his accident occurred between 9 a.m. and 10 a.m. (98). In the moment before the accident occurred, plaintiff was looking down "at the grasses" and was just using the weed whacker (84, 102). Plaintiff stated, "I thought I'd pulled all the metal out of that area and I was just trimming it down" (84). He explained that he had been in that area during the work session preceding the date of his accident, and "had cleared metal out of the area, pulled it all out" with bolt cutters and by "physical yanking" (84-85). Thereafter, he had moved the metal "[o]n the other side of the perimeter path" at least four to five feet away from the fence (85). Plaintiff later said that on the date of the accident he was working "farther down" from the portion of the path from which he had already cleared metal (86).

When asked how the accident occurred, plaintiff replied, "I was cutting some grass and, all of a sudden, bang. I thought that that metal blade on that weed whacker had flown into my face. And I dropped to my all fours" (100-101). Plaintiff stayed on the ground for five to ten minutes (108). He did not observe any old fencing while on the ground (109). After calling Trotta (who was out of town) to say that he'd been hurt and calling another Club member, plaintiff picked up his equipment and walked back to his vehicle (110-111, 113). At that time, [*3]plaintiff realized that he had not been struck by the weed whacker blade (105). He explained, "I looked in the side-view mirror and saw a piece of metal one and a half times the length of this pen, say eight inches long, stuck in my [left] eye right there" (106). He also had a large scrape on his face (106). Plaintiff stated that there was "steel fencing in [his] eye" and that "[i]t was a piece of the old perimeter fence" (106). Plaintiff arrived at this conclusion "[b]ecause it was the same diameter and the same length as the pieces of the fence that were, you know—it wasn't little pieces but you'd have a whole square, and that's exactly what the length of it was. I mean it was obvious it was fence material" (107). He pulled out the piece of metal, which he estimated to be "[b]etween an eighth and a quarter inch" in diameter, and bandaged his eye (107, 112). Plaintiff then drove himself to the hospital (116). He stated that he did not know what he did with the metal piece (107). Plaintiff did not report the details of the accident to anyone at the Club (130-131), nor did he fill out an accident report (136).

Defense counsel and plaintiff had the following exchange:

Q. Did you ever make any complaints to anyone at the club about the conditions you were encountering while you were clearing the perimeter path?

A. Yeah. I had mentioned to Dan [Trotta] a number of times there was a lot of metal in the woods that I piled up and it needed to be removed (52-53).

When plaintiff first complained to Trotta, it was about metal fencing located in the old rifle range area (62). He stated, "Probably six weeks to three months after working [on the path project], I encountered fence that was laying around, left over from when they'd last done fencing around the perimeter. Not good chain-link, but old stuff" (55). He described it as "square, almost wildlife fencing that you would find in a farm as opposed to chain-link," and surmised that it "was the fencing that the chain-link had replaced" (56). Plaintiff told Trotta, "you know, I used bolt cutters and chopped it up a little, but it's piled up to be removed" (53-54). He testified, "When I told [Trotta] there was metal in the woods that needed to be removed, he said I love hauling metal out of the woods—really enthusiastic—thanks so much" (62).

Plaintiff did not know whether anyone removed the metal he complained about, but he "assumed [Trotta] would do that" (63). After making his initial complaint, plaintiff continued working on the path and encountered additional metal fencing in the woods (64). He stated, "It was, again, old fencing. I'd cut it with bolt cutters and pull it away when I found it, pile it up" (64). He would then tell Trotta that there was more fencing, and Trotta would say "okay" (64).

Plaintiff also gave the following testimony:

Q. And did you feel that this metal fencing was dangerous?

A. Not when it was pulled away. Not when I cleared it with the bolt cutters and chopped it away.

Q. You felt it was dangerous when it was still attached to the chain-link fence?

A. Never was attached. It was just bound up in weeds.

Q. So you felt it was dangerous when it was bound up in the weeds?

A. No. It could be dangerous if you were chopping stuff and it was laying around. So I cleared it before I would chop the weeds and stuff.

Q. And before the date of your accident, how did you clear the metal fence?

A. I used bolt cutters to cut it, and pull it away.

Q. And were those your bolt cutters?

A. Yes, ma'am (68-69).

Plaintiff could not recall when he complained to Trotta a second time or when he last made a complaint to Trotta prior to his accident (63, 86). He had "[n]o specific recollection" of complaining to Trotta about fencing or metal in the section of the perimeter path that he was working on at the time of his accident, which was near the Con Edison property line (60, 129-130).

Plaintiff returned to the Club in the fall of 2015 and "[c]ontinued doing what [he'd] been doing once [he] was able to function" (131). Plaintiff thought that he might have worked on the path project "more than five times" after the accident (135). He completed the path project in 2016 (135). He continued to pay Club membership dues post-accident (136-137). Plaintiff was dropped from the Club's membership rolls in March 2016 after a hearing before the Club Board (137). The Board members "presented a case that [plaintiff had] hollered at Dan Trotta" in January 2016 over wood stove safety instructions, which plaintiff had in fact done (137-138). Plaintiff filed the instant lawsuit thereafter (141).

At the time of his deposition, John Trotta had worked at the club for 26 years and lived on the Club grounds (29-31). He became the Club's caretaker in 2008 or 2009 (9, 13). Matt Burbige is the Club's assistant caretaker (14-15). Trotta and Burbige "walk the fence" three to four times during hunting season due to poachers cutting fence line (32). Although Trotta and Burbige walked in the area where plaintiff claimed his accident occurred, Trotta explained that they could only get within 10 to 15 feet of the fence because it was "very overgrown right there" (32-33).

Wood Chopper's Day occurs in May and September (47). Trotta described it as "a catch-up day for us to help [Trotta and Burbige] and the, you know, have the club members feel some ownership towards, you know, some pride in taking care of the club and cleaning it up and splitting firewood for the upcoming winter" (47-48). Club members attended Wood Chopper's Day "on a voluntary basis" (48). When asked if Club members were given work assignments on that day, he replied, "[W]hat I normally do is I will write down wood splitting, fence repair, road cleanup, whatever jobs. And then I allow—then they sign up for what they want to do" (48).

Trotta recalled a face-to-face discussion with plaintiff, "probably at a Wood Chopper's Day," about plaintiff "wanting to create a path around" (55). When asked what plaintiff said about the perimeter path project, Trotta replied, "I don't recall. It's been four, five years now" (55). He did not remember his reaction to the idea, but said, "I don't believe I was against it" (56). Plaintiff's counsel and Trotta then had the following exchange:

Q. After you had the discussion with [plaintiff] about the perimeter path project he envisioned at the Wood Chopper's Day, at a subsequent Wood Chopper's Day, did you put a group together to work on a perimeter path?

A. I put a group together, that I recall, to do fence repair along the Taconic. And I think that was right around or after Hurricane Sandy.

Q. Did you ever put together a group, on Wood Chopper's Day, specifically to work on the perimeter path project?

A. Not that I recall (57).

When asked if he provided plaintiff with any equipment to use while working on the perimeter path project, Trotta replied, "Some hand tools, some like loppers. That's probably the most I would give him was something like that" (57). He did not recall loaning a log rolling tool to plaintiff (58). Trotta similarly did not recall giving plaintiff any "Danger Shooting Range" signs, although he agreed that it could have happened (63). Trotta gave plaintiff some marking tape because plaintiff asked for it (64).

Trotta often saw plaintiff come to the Club in the mornings (58). When asked if he ever stopped and spoke to plaintiff upon plaintiff's arrival, Trotta said, "I'm sure I did. I can't give you an exact time or a date. But I speak to a lot of members that come through the gate in the morning" (59). However, he did not recall having any discussions with plaintiff "about how it was going with the perimeter path project" (64-65). Trotta remembered seeing plaintiff at the Club on Wednesdays (61), and would speak to him "in passing" at lunch time (76).

Plaintiff drove a pickup truck in 2015, and Trotta "noticed that [plaintiff] would have tools in the back from time to time" (59). He did not recall seeing any safety equipment in the truck, such as a helmet, and never saw plaintiff wearing a helmet (59-60).

Trotta testified that plaintiff, "at one point, told [him] that there was downed fencing like spooled up in the back corner of the property, which is almost impossible to access. It's up on top of a very steep hill. You can't get a truck, you can't get—the reason it was left there, and it's probably 40 years old, is because it's impossible to—it's too much of an effort to bring it down" (65). That was the only discussion Trotta had with plaintiff about debris plaintiff was encountering while working on the project (65-66). When asked what he said in response to plaintiff's claim, Trotta said, "I'm sure I said something to the effect of I would scrap it if I could get it. I try to pick up anything that's old and unsafe and get rid of it. But the reason I've never taken that out is because it's very hard to get" (66).

Trotta agreed that he has observed "rusty fence at the Camp-Fire Club inside the new chain-link fence," and that the old fencing remains (70-71). The following discussion ensued:

Q. Did [plaintiff] ever tell you that there was old fencing that should be removed where he was working?

A. I believe all we talked about were those spools on the upper back way up top that, again, it's very very hard to get to (71).

Trotta was attending his grandfather's funeral in North Carolina when another Club member called to inform him that plaintiff had been hurt (73). Trotta told Burbige to find plaintiff (73). When Burbige was unable to do so, "everyone just start[ed] looking" (73). When Trotta called back after the funeral he was told that plaintiff had not been found, but that a Club member saw plaintiff "driving out" (73). Plaintiff never came and talked to him about his injury (74-75).

Since plaintiff's completion of the path project, Trotta and Burbige have driven around the perimeter path in an ATV in connection with Club maintenance activities (75-76). Trotta drives on the path three to four times per year (76). He did not know if any Club members have used the path, and stated that no Club member other than plaintiff has ever spoken to him about the path (75-77).

On November 21, 2019, the Club timely moved for summary judgment dismissing the complaint. It asserts that plaintiff's claims are barred because he executed a General Release on March 24, 2014. According to the Club, the release does not run afoul of General Obligations Law §5-326 (which voids certain types of releases). In the alternative, the Club argues that summary judgment is warranted because plaintiff was working on his own to clear the path while using his own tools and safety equipment, plaintiff was working on a strictly volunteer basis, the Club did not direct, control, or check plaintiff's work, and plaintiff was injured after resuming work in an area where he incorrectly believed that he already cleared all of the metal.

In opposition,^[FN3] plaintiff contends that the General Release is inapplicable because plaintiff was not a participant in a Club-sponsored program at the time of his injury, and was instead "working on an unadvertised project that he, not the Club, conceived of, and for which the Club simply agreed and provided him with equipment" (Opp. at p.7). Plaintiff further opines that the release "is designed to guard against suits for risks associated with shooting events at the Club," and that the risk of injury to plaintiff while clearing the perimeter path was not contemplated in the release (Opp. at p.7). Plaintiff also reasons that "General Obligations Law §5-326 invalidates disclaimers of negligence liability by owners of recreational facilities" such as the Club (Opp. at p.7). In addition, plaintiff contends that the wording of the release fails to clearly and unequivocally insulate the Club from liability for its own negligent acts.

Plaintiff next argues that the Club failed to make a prima facie showing that it did not create or have notice of an allegedly dangerous condition. He asserts that the Club created a dangerous condition by leaving rusty old fencing on the property, "had actual notice and warnings about it, and had constructive notice of it" (Opp. at p.10). Plaintiff contends that cases cited by the Club are inapposite because they generally involve situations where a volunteer was injured due to his own conduct as opposed to a dangerous condition created by a landowner.

In reply, the Club disputes plaintiff's claim that the old fencing constituted a dangerous condition, pointing out that plaintiff was well aware of the presence of old fencing and in fact undertook to remove same as part of his volunteer work. In any event, the Club argues, "a landowner is not responsible to one hurt by a 'dangerous condition' which he has undertaken to fix" (Reply Aff. ¶11).

The General Release executed by plaintiff prior to his accident contains the following language:

The undersigned herby [sic] releases the Camp Fire Club of America ("Camp Fire") and its employees and volunteers from any claim or liability should an accident or injury occur to the participant as a result of participation in a program sponsored by or taking place at Camp Fire, including use of shooting ranges as a shooter or an observer. I [*4]understand that shooting activities entail significant risk of injury and death, and I agree that I will participate in any such activity with full knowledge of such risks and with the understanding that I accept full responsibility for any accident or injury and its consequences (Ex. E).

In light of this language, the Club's contention that plaintiff's claims are barred by the General Release is unpersuasive. Although plaintiff's deposition testimony reflects that he was injured on Club grounds, he was not participating in a Club program at the time of his accident. Rather, he was working on a special project that he had conceived. Accordingly, on its face, the release does not apply to this case (see Van Dyke Prods. v Eastman Kodak Co., 12 NY2d 301, 305 [1963]).

In addition, the Court of Appeals has stated that "[i]n the absence of a contravening public policy, exculpatory provisions in a contract, purporting to insulate one of the parties from liability resulting from that party's own negligence, although disfavored by the law and closely scrutinized by the courts, generally are enforced, subject however to various qualifications. Where the language of the exculpatory agreement expresses in unequivocal terms the intention of the parties to relieve a defendant of liability for the defendant's negligence, the agreement will be enforced" (Lago v Krollage, 78 NY2d 95, 99-100 [1991] [citations omitted]).

Here, assuming arguendo that plaintiff was participating in a Club program, the release is worded in such a manner that the Club cannot limit liability to the extent that its own negligence (if any) played a role in plaintiff's accident. In contrast to the cases cited by the Club (see, e.g., Baschuk v Diver's Way Scuba, 209 AD2d 369 [2d Dept 1994]), the release at issue fails to express in "unequivocal terms" that the parties intended to relieve the Club of liability for its own negligence (see Gross v Sweet, 49 NY2d 102, 110 [1979] [concluding that the release at issue "could most reasonably be taken merely as driving home the fact that the defendant was not to bear any responsibility for injuries that ordinarily and inevitably would occur, without any fault of the defendant, to those who participate in such a physically demanding sport" as parachute jumping]; Trummer v Niewisch, 17 AD3d 349 [2d Dept 2005] [concluding that "the broad, sweeping language of the release was not sufficiently clear and specific to relieve [defendants] of liability arising from their own negligence"]; DiPilato v Biaseti, 6 AD3d 648 [2d Dept 2004] [similar]; Conteh v Majestic Farms, 292 AD2d 485 [2d Dept 2002] [similar]). Rather, read as a whole, the release suggests that its main purpose is to prevent lawsuits stemming from a Club member's own misconduct as opposed to acts or omissions on the part of the Club.^[FN4]

The Court next considers the Club's contention that it is entitled to summary judgment on the merits. In Macey v Truman (70 NY2d 918, 919 [1987]), the Court of Appeals remarked, "A landowner owes a duty to another on his land to keep it in a reasonably safe condition, considering all of the circumstances including the purpose of the person's presence and the likelihood of injury." It further noted that where an injury results "not from any unsafe condition defendant left uncorrected on his land," but as a direct result of plaintiff's course of action, "the law impose[s] no duty on defendant as landowner to protect plaintiff from the unfortunate [*5]consequences of his own actions" (id.). In addition, the Second Department has stated that where a plaintiff's "injury resulted not from any unsafe condition of the defendant's land but as a direct result of the plaintiff's use of his own equipment while engaged in an activity he volunteered to undertake, the landowner is not liable" (Smith v Taylor, 279 AD2d 566, 567 [2d Dept 2001] [emphasis added]; see Mattes v Joseph, 282 AD2d 506 [2d Dept 2001]).

In this case, as argued by the Club, plaintiff acted alone, on a volunteer basis, without Club oversight, while using his own tools.^[FN5] In addition, plaintiff had no recollection of complaining to Trotta about metal fencing located in the area where his injury occurred, nor did Trotta recall receiving any such complaint. The Court further notes that according to plaintiff's own testimony, the metal fencing was not dangerous in its natural state. Specifically, when asked if he felt the fencing "was dangerous when it was bound up in the weeds," plaintiff replied, "No. It could be dangerous if you were chopping stuff and it was laying around. So I cleared it before I would chop the weeds and stuff" (68-69). The record reflects that the fencing only became dangerous to plaintiff when he chose to employ his weed whacker without first removing it. Indeed, plaintiff testified (before later contradicting himself) that he thought that prior to his accident, he had already cleared the metal fencing located in the area where his injury occurred.^[FN6]

Under these circumstances, the Club has established its prima facie entitlement to judgment as a matter of law (see Stamatatos v Stamatatos, 95 AD3d 1297 [2d Dept 2012] [respondent made out a prima facie case by establishing that "plaintiff's injury did not result from a physical defect on her property, that the injury resulted solely from the manner in which the plaintiff chose to perform certain work on the respondent's house, and that the respondent did not exercise any control or supervision over the plaintiff"]; Prairie v Sacandaga Bible Conference Camp, 252 AD2d 940 [3d Dept 1998]). Plaintiff failed to raise a triable issue of fact in opposition (see Mattes v Joseph, 282 AD2d 506 [2d Dept 2001]), and his reliance on Peralta v Henriquez (100 NY2d 139 [2003]) is misplaced. Accordingly, the Club's motion for summary judgment is granted.

All other arguments raised and evidence submitted by the parties have been considered by this Court notwithstanding any specific absence of reference thereto.

Accordingly, it is:

ORDERED that defendant's motion for summary judgment dismissing the complaint is granted.

This constitutes the Decision and Order of the Court.