SCHIFF v. THE STATE OF NEW YORK, #2004-033-077, Claim No. 107777, Motion No.
DAVID SCHIFF and IRIS SCHIFF
Footnote (claimant name)
THE STATE OF NEW YORK
Footnote (defendant name)
JAMES J. LACK
Greshin, Ziegler & Amicizia, LLPBy: Joel J. Ziegler, Esq.
Eliot Spitzer, New York State Attorney GeneralBy: Denis J. McElligott, Assistant Attorney General
September 30, 2004
See also (multicaptioned
This is a claim brought by David Schiff (hereinafter "claimant") due to the
alleged negligence of defendant, (hereinafter "State") occurring on July 20,
2002, at the Edwards Avenue canoe launch in Riverhead, New York. The claim of
Iris Schiff is derivative in nature. Claimants move this Court for partial
summary judgment on the issue of
On July 20, 2002, claimant and his wife rented canoes from a private enterprise
known as Peconic Paddler. The merchant transported claimant, his wife and
others to Edwards Avenue to launch their canoes. Claimant and his wife got into
their canoes and paddled a short way from shore to wait for other people to
launch their canoes. Claimant's cousin called to claimant and his wife that
they did not have life jackets. The pair paddled back to shore, beaching the
front end of the canoe on the shore. Claimant, who was in the rear of the
canoe, got out to get life jackets. At the point where claimant got out of the
canoe, the water was approximately eight inches above his knee. When claimant
got out, he was unable to move. Claimant found that he had impaled his leg on a
rusty metal rod imbedded in concrete.
The area in question is owned by the State of New
The site had been acquired by the New
York State Department of Conservation (hereinafter "DEC") in 1996 (claimants'
Exhibit F). The site was acquired from a private individual who had blocked
access at this location to the river by erecting a fence. The site had been a
portage for canoes for a long time. DEC acquired the site to reopen it to
canoes. The area is maintained by DEC and inspected by DEC at least once each
year. When DEC acquired the property, the department constructed a set of steps
and a canoe slide to aid canoe passage downstream. DEC issues access permits to
give canoes access to this site.
There is an earthen dam at the site with a concrete spillway which is owned by
DEC. In January 2000, Guthrie wrote a memo indicating that the dam was in a
deteriorated condition and needed repairs. Guthrie's inspection of the dam did
not include an underwater inspection. The witness was concerned because the
concrete was deteriorated and he was fearful that the dam would fail. He stated
he could not determine if any pieces of concrete had broken off of the dam
structure. The witness was directed by his supervisor to pass the request for
an inspection to the operations portion of DEC, which he did. At the time of
his deposition in February 2004, no action had been taken on rehabilitating the
After learning of the instant accident in January 2003, Guthrie visited the
site in May 2003. Using a pair of waders, Guthrie went into the water and found
an obstruction in approximately three feet of water. The obstruction was
described as metal sticking up approximately 18 inches from the bottom. He
could not determine what it was embedded in, but he was unable to move it by
According to the witness, the location
the obstruction was in posed a hazard to canoeists.
Summary judgment is a drastic remedy which deprives a party of its day in court
and should not be granted where there is any doubt as to the existence of a
material issue of fact (Moskowitz v Garlock, 23 AD2d 943; Epstein v
Scally, 99 AD2d 713). The Court's function is to determine if an issue
exists. In doing so, the Court must examine the proof in a light most favorable
to the party opposing the motion. Summary judgment may only be granted if
movant provides evidentiary proof in admissible form to demonstrate that there
are no questions of fact (Winegrad v New York Univ. Med. Center, 64 NY2d
851; Wanger v Zeh, 45 Misc 2d 93, aff'd 26 AD2d 729). Once the
movant has demonstrated a prima facie entitlement to summary judgment as
a matter of law, the burden shifts to the opposing party to submit evidentiary
proof in admissible form sufficient to create an issue of fact or demonstrate an
acceptable excuse for his failure to submit such proof (Alvarez v Prospect
Hosp., 68 NY2d 320). Mere conclusions, speculation or expressions of hope
are insufficient to defeat the motion (Amatulli v Delhi Constr. Corp., 77
Upon reviewing the papers and exhibits submitted by claimants, the Court finds
that claimants have demonstrated a prima facie entitlement to summary
judgment as a matter of law. In examining defendant's opposition, the Court
finds that defendant does not present any evidence in admissible form to
demonstrate a question of fact. Defendant's arguments in opposition focus on
the lack of liability of defendant by way of legal arguments.
This case is clearly ripe for this type of motion. There are no witnesses
presented to contradict claimant's version of the incident. In other words, no
question of fact exists. The only question is whether or not defendant can
legally be held liable in this matter based upon the facts as presented.
Defendant argues that the State is immune from liability pursuant to General
Obligations Law §9-103. General Obligations Law §9-103(1)(a)&(b)
1. Except as provided in subdivision two,
a. an owner, lessee or occupant of premises, whether or not posted as provided
in section 11-2111 of the environmental conservation law, owes no duty to keep
the premises safe for entry or use by others for hunting, fishing, organized
gleaning as defined in section seventy-one-y of the agriculture and markets law,
canoeing, boating, trapping, hiking, cross-country skiing, tobogganing,
sledding, speleological activities, horseback riding, bicycle riding, hang
gliding, motorized vehicle operation for recreational purposes, snowmobile
operation, cutting or gathering of wood for non-commercial purposes or training
of dogs, or to give warning of any hazardous condition or use of or structure or
activity on such premises to persons entering for such purposes;
b. an owner, lessee or occupant of premises who gives permission to another to
pursue any such activities upon such premises does not thereby (1) extend any
assurance that the premises are safe for such purpose, or (2) constitute the
person to whom permission is granted an invitee to whom a duty of care is owed,
or (3) assume responsibility for or incur liability for any injury to person or
property caused by any act of persons to whom the permission is granted.
According to defendant, claimant was engaged in an enumerated activity for which
the statute grants the State immunity.
The Court of Appeals extended the statute's protection to the State of New York
in Sega v State of New York, 60 NY2d 183. In Sega, claimant had
been camping in an undeveloped campsite. Her accident was caused by a railing
coming loose on a bridge that she was sitting on. The State did nothing to
maintain the campsite except for occasional trips to the park to remove garbage.
The appellate court applied General Obligations Law §9-103 in affirming the
Court of Claims decision. The Court of Appeals held that the statute included
lands owned by the State of New York.
However, in Ferres v City of New Rochelle, 68 NY2d 446, the Court of
Appeals found that General Obligations Law §9-103 does not absolve a
municipality from all liability on recreational land. The court distinguished
the type of property found in Sega and the property found in Ferres.
The property complained of in Ferres was developed park land. There
was a supervisor on site with 24 employees, a beach, guardhouse, pavilions and a
place to eat. We note, moreover, that when General Obligations Law § 9-103
is applied, for example, to a person hunting or fishing in open or wilderness
areas pursuant to the owner's permission granted under the statute, there is a
quid pro quo -- permission to hunt or fish in return for the statutory immunity
from liability. But for the inducement to the owner of the liability protection,
the person presumably would not have been permitted on the property. This is
clearly not the case when someone is injured in a city park like the one here
where the public is already encouraged to engage in recreational activities of
all kinds. Then, the city has already undertaken the higher duty that the law
imposes on municipalities in the operation and maintenance of supervised park
facilities (see, Preston v State of New York, 59 NY2d 997, supra;
Scurti v City of New York, 40 NY2d 433, 437; Caldwell v Village of Is.
Park, 304 NY 268, 274, supra) . . .
(supra at 454).
The situation at bar is more akin to Ferres than Sega. The
testimony of Guthrie demonstrates that the State bought the property for
canoeists to use. Further, the State was encouraging the use of the site by
making it easier and safer for the portage of canoes. The State built steps to
the water and a canoe slide. Defendant inspected the area at least once each
year. In the event maintenance was needed, the State had developed a procedure
for it to be done, albeit a formal and slow procedure.
The Court finds that the State had undertaken a duty to maintain the area and
that General Obligations Law § 9-103 does not apply to this case.
As the owner and operator of the site, the State's duty is to use reasonable
care in maintaining the property in a reasonably safe condition to prevent the
occurrence of foreseeable injuries (Basso v Miller, 40 NY2d 233). The
duty of care is limited by claimant's reasonable expectations under the
circumstances. The defendant's obligation in such a situation is to make the
premises as safe as they appear to be so that claimant can fully comprehend and
see the risks which will be assumed (Drew v State of New York, 146 AD2d
847; see also, Walter v State of New York, 185 AD2d 536).
According to Mochen v State of New York, 57 AD2d 719, 720:
Negligence cannot be presumed from the mere happening of an accident. It is
incumbent upon the part of claimant to show affirmatively by competent evidence
that the injury complained of was caused by reason of some breach of duty by the
State. Negligence must be proven.
It is incumbent upon claimant to establish: the existence of a foreseeable
dangerous condition; that the State created the condition or had either actual
or constructive notice of the condition; that the State failed to remedy the
condition within a reasonable time; that such condition was a proximate cause of
claimant's accident; and that damages were sustained (Gordon v American
Museum of Natural History, 67 NY2d 836).
The State purchased the site because the private owner had erected a fence
which prevented canoeists from using the site. In addition, the State was
concerned about the deterioration of the dam at the site. Considering these two
situations, it is reasonable to think that the State would inspect the river bed
around the area for hazards. Guthrie's rather simple inspection with waders
revealed an obstruction which he called a clear hazard to canoeists. Underwater
hazards, especially given the circumstances in this case, are foreseeable.
The Court finds that the State had constructive notice of the obstruction upon
which claimant was injured. The metal rod was the proximate cause of claimant's
Defendant's remaining argument is that claimant assumed the risk of injury by
participating in this activity. Defendant posits that the assumption of risk
doctrine states that a participant consents to commonly appreciated risks
inherent in and arising from the nature of the sport and which flow from
participation. Case law abounds with precedent for this doctrine.
The Court would agree with defendant if claimant had slipped on an underwater
rock or root, or if he had been bitten on his posterior by a fish. However, a
metal rod embedded in the river bed is not a commonly appreciated risk
associated with canoeing.
Based on the foregoing, the Court grants claimants' motion for partial summary
judgment on the question of liability and finds defendant fully liable for
claimant's injury. The parties shall contact the Court to schedule a conference
concerning the damage portion of this case.
Hauppauge, New York
HON. JAMES J. LACK
Judge of the Court of
The following papers have been read and
considered on claimants' motion for partial summary judgment on liability:
Notice of Motion dated March 5, 2004 and filed March 8, 2004; Affidavit in
Support of David Schiff with annexed Exhibits A-L, sworn to March 5, 2004 and
filed March 8, 2004; Claimants' undated Memorandum of Law; Affirmation in
Opposition of Denis J. McElligott, Esq. dated July 9, 2004 and filed July 12,
2004; Claimants' undated Memorandum of Law in Reply received July 22, 2004.
The facts are obtained from the Court's
examination of claimant's deposition (claimants' Exhibit D).
This fact, as well as those following, come
from the deposition of Charles Guthrie (claimants' Exhibit E). Mr. Guthrie is a
Regional Fisheries Manager for the New York State Department of Environmental
The obstruction was removed at a later date
using a winch.